The Mistake in Marriage of Binette: The New Grounds to Set Aside a Family Law Judgment Based on a Failure to FuLfill Financial Disclosure Requirements

Jack J. McMorrow

Jack J. McMorrow is a family law attorney at Harris • Ginsberg LLP in Los Angeles. He is President of the Barristers section of the Beverly Hills Bar Association and the California Lawyers Association Family Law Executive Committee representative to the California Young Lawyers Association.

Last year’s newly published case, In Re Marriage of Binette,¹ while primarily a discussion about the requirements of California Family Code section 217, the implications of the recent cases In re Marriage of Shim-kus² and In re Marriage of Swain³ set forth a surprising and ambiguous conclusion regarding the bases and timeline to set aside a family law judgment based upon a party and/or the parties’ failure to satisfy the statutory financial disclosure requirements. Binette‘s holding arguably runs afoul of controlling constitutional law concerning the ability to set aside a final judgment without any reference to the constitutional requirements. The ruling calls prior case law into question and calls for discussion – if not clarity.

Section 2122⁴ sets forth explicit grounds and timing for a motion to set aside a judgment entered in a family law matter as follows: