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I am the respondent in divorce that has gone to default how do I contest so I have a say in the hearing, Without a lawyer?

Los Angeles, CA |
Filed under: Divorce

I never responded to divorce papers and it went to default. Is there a way to contest this without a lawyer?

Attorney Answers 3

Posted

If there is a default entered, you have no say at the default prove-up trial. However, you may want to try and set-aside the default.

Relief from Defaults

A default judgment is obtained by the plaintiff when the defendant does not file a response to the Summons and Complaint, or does not appear at the hearing. Defaults may be set aside or vacated by the court at the request of the defendant. California law provides specific grounds on which a defendant may base a motion for relief from a default or default judgment. The defendant bears the burden of proving to the court that he or she is entitled to relief from default. The moving party also must show that they have a meritorious defense to the original case.

GROUNDS FOR RELIEF
California Code of Civil Procedure sections 473(b), 476(d) and 473.5 specify the grounds on which you can base a motion for relief of default or default judgment. Permitted grounds include:

Mistake (CCP 473(b)):
A mistake of fact occurs when a person understands the facts to be other than they are. A mistake of law occurs when a person knows the facts as they are, but has a mistaken belief as to the legal consequences of those facts. Ignorance of the law or negligence in researching the law does not constitute excusable mistake, and therefore is not grounds for relief from default.

Inadvertence (CCP 473(b)):
Inadvertence stems from a lack of attentiveness, inattention, or fault from negligence. However, mere inadvertence does not warrant relief unless, on consideration of all the evidence, the inadvertence is excusable. Forgetting about the case or mislaying the summons and complaint are not sufficient grounds for relief. Inadvertence is often combined with excusable neglect.

Surprise (CCP 473(b)):
Surprise occurs when a party is placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary prudence would not have guarded against.

Excusable Neglect (CCP 473(b)):
To be excusable, the neglect must have been the act or omission of a reasonably prudent person under the circumstances.Forgetting about the lawsuit, being too busy to properly respond, or being unable to afford an attorney are not grounds for excusable neglect. Examples of excusable neglect include:

* Illness that disables the party from responding or appearing in court
* Failure to respond because you relied on your attorney to do so
* Failure to appear at trial because you relied on misinformation provided by a court officer

Party not given "actual notice" in time to defend (CCP 473.5):
If service of the summons did not result in "actual notice" to a party in time to defend their case, the default may be set aside. "Actual notice" means the party genuinely knows of the litigation. Lack of actual notice cannot be caused by the defendant's inexcusable neglect or avoidance of service.

Void judgments (CCP 473(d)):
The court may, on its own motion or the motion of either party, set aside any void judgment or order. A judgment or order may be void if the issuing court lacked subject matter jurisdiction over the action, personal jurisdiction over the defendant, if the judgment or order granted relief that the court had no power to grant, or if the judgment was procured by fraud on the court. A common way default judgments are considered void is if the judgment was obtained after improper or fraudulent service, resulting in a lack of personal jurisdiction over the defendant. There are many other ways in which a default judgment may be void.

THERE ARE TIME FRAMES WITHIN WHICH SUCH A MOTION MUST BE FILED, DEPENDING UPON THE CIRCUMSTANCES UNDER WHICH THE DEFAULT WAS TAKEN.

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Posted

Without an attorney, your best bet is to work with your county's family law facilitator to help you fill out the paperwork. I do suggest though that if at all possible, you have an attorney assist you with this, since you only have one shot at setting aside the default.

If you are within the right time period, you can request that the default be set aside. The previous poster did a fantastic job of laying out all of the legal requirements and bases for setting aside a default, so I won't rehash the details.

It is very important that you be proactive and act quickly in order to protect your rights. If you are within the timeframe, you should have a reasonably good chance of setting aside the default, since Courts generally like both parties to participate in their divorce.

Good luck!

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Posted

While Mr. Baer has done a fine job of laying out the legal requirements to "set aside" or vacate a default, what he may not have emphasized quite vigorously enough is that if you do this without an attorney, you will need to:

prepare all the papers properly,

copy, file and serve them in the proper fashion,

appear at the time of the hearing on your motion and

address the court.

ALL of this process is time-sensitive, and if you fail to act quickly, the court can deny your motion just based upon your delay. That also means that if you do these steps INCORRECTLY the first time, you will have used time and effort, only to have to do it over again.

Motions to vacate are complicated enough that some attorneys don't prepare them correctly the first time. If there are significant economic issues, or other substantial issues at stake in your dissolution, then you should at least consult with an experienced family law attorney before going forward with the motion; the cost of that consultation will be more than made up for by the increase in your chances of getting this done right.

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