• How to Contest Default Judgment in Divorce

How to Contest Default Judgment in Divorce

Are you looking to contest default judgment in divorce? You may have found yourself in this situation because you did not file a response to your divorce proceedings. If a default judgment in divorce has been entered against you, don’t despair. You do have options.

Why Was Default Judgment in Divorce Entered?

When a California resident files for divorce, the respondent (other spouse) may respond to the petition in several ways. The first option allows the respondent to not file a response at all. This is considered a “true default.” The respondent in this situation would completely give up his/her rights to take part in the divorce or be heard by the court.

A case is considered “default” or “uncontested” when the respondent files a response and reaches an agreement with the petitioner. Most people want to take part in decisions related to their divorce. In reality, it is rare for a party to contest a default judgment in divorce.

As mentioned above, a default judgment can be obtained by the petitioner when the respondent does not show up at a hearing or neglects to respond to the complaint and summons. If you are the Respondent, you may contest default judgement in divorce and ask that the court set the order aside or vacate the order.

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Legal Reasons to Contest Default Judgment in Divorce

In California, a respondent can contest default judgment in divorce  if the following has occurred:

  • Mistake. The respondent can contest default judgment in divorce so long as there was a mistake of fact or law which resulted in the divorce being granted. A mistake of law can occur when a person misunderstands the legal consequences of known facts. For example, a person does not understand the legal consequences of dividing property. Ignorance of the law or neglect are not valid justifications.
  • Surprise / Inadvertence.  A respondent can contest default judgment in divorce based on surprise or inadvertence. This situation occurs when the respondent is in an unexpected detrimental situation. For example, the Petitioner may have misled or persuaded the respondent not to file a Response. Alternatively, the respondent may, for some reason, have been unaware of the proceedings due to the manner in which they were served with the divorce proceedings.
  • Excusable Neglect. A respondent can also contest default judgment in divorce if they have a legitimate excuse for failing to take the required action in time. For example, the respondent may have failed to take the necessary action if he/she was ill, disabled, or mentally confused.

Keep in mind, contesting a default judgment in divorce for one of the above claims is at the discretion of the court. A motion for relief must be filed within six months of the judgement being granted. Setting aside a judgment based on equitable relief can occur after the six month period elapses.

Common grounds to contest default judgement in divorce for equitable relief include fraud and duress. A motion to vacate a judgment can be filed if judicial error occurred.

The respondent must prepare a Notice of Motion to Set Aside Default and Default Judgment. A Memorandum of Points and Authorities should go with the motion. Affidavits and declarations should also be prepared and submitted in support of the motion.

Requesting to set aside a default judgment is not easy. You can visit the California Court’s website for more information about how to set aside (cancel) an order in a divorce case. If you are ready to proceed, however, contact A People’s Choice for help in preparing the necessary documents to contest a default judgement in divorce. We can guide you through the process to set aside default judgement in divorce if you have legal reasons to do so. Call us today at 800-747-2780.

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By | 2018-01-18T15:46:07+00:00 September 2nd, 2017|Family Law|0 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

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