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Can you get a judge to grant a motion to set aside default filing (no judgement yet) for failure to prosecute? Any references?

Elk Grove, CA |

Can you get a judge to grant a motion to set aside default filing (no judgement yet) for failure to prosecute? Any references? What should I say in my "proposed response"?

I have been separated for over three years and spouse filed to enter default. I wasn't contesting so I didn't file any response. Now, there has been no activity on spouse's part to get the default judgement (over a year has elapsed from last filing). How can I get back into this case to move forward and have a divorce finalized?

Attorney Answers 2

Posted

The time to set aside a default is 6 months from date of entry, but many judges exercise discretion when appropriate. The fact that your spouse has not filed a judgment should have triggered an OSC (Order to Show Cause) re: Dismissal for Failure to Submit Judgment. That OSC, which is a court hearing that only the petitioner needs to attend, would have set a deadline for spouse to file the paperwork and if the deadline is missed, the case would be dismissed without prejudice. If there are no property/custody/support issues to address, you could call the court clerk and ask them why an OSC Re: Dismissal for Failure to Submit Judgment has not been calendared. Note: because you have been defaulted, you probably won't get notice from the court. Hire an attorney if your spouse has asked for support, division of property or if you have minor children together.

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Posted

The short answer if probably, you will want to contact an attorney in your area for assistance.

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