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Is it viable to set aside a divorce default judgement if no interpreter is present at the hearing to explain the proceedings?

Asked over 2 years ago - San Francisco, CA

Respondent was served divorce papers while incarcerated for alleged domestic violence (on appeal) and default judgement was served while he was commited to a penal mental hospital-diagnosed with PTSS.

He was asked by a judge if he wanted divorce hearing before or after criminal hearing. He chose afterward. Despite this, divorce proceedings were implemented prior to the criminal case being finalized.

No translator was provided at judgement hearing (russian). He now has no home, no business, no children and the property declaration by ex-wife is riddled with non-disclosures, hidden assets, inaccuracies and blatant lies regarding income, separate property and other relevant issues.

What grounds are most valid to file for a motion to set aside judgement in CA?

Thank You-LZ

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Attorney answers (2)

Douglas Scott Srulowitz

Reputation Level 10

Answered over 2 years ago. Divorce / Separation Lawyer in Stockton, CA.

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In family law, anything not disclosed, the court retains jurisdiction over... this is usually property items. A judge in a criminal case has no jurisdiction over a family law case and vice versa. The parties provide their own translators.

He probably does not want to set aside status - he's single. Child custody and support can be handled by filing a motion to modify. So, it appears the only issue is property. He can move to set aside for mistake, excuseable neglect or possibly fraud. This motion is usually more complex than the layman can handle. It requires specifying under the law the basis for the request, factual support, and points and authorities.

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Richard Forrest Gould-Saltman

Reputation Level 18

Answered over 2 years ago. Divorce / Separation Lawyer in Los Angeles, CA.

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If the dissolution judgment was entered after a default, then the Respondent had waived his right to participate in the proceedings, let alone have an interpreter provided.

That being said, if at the time of the dissolution, Respondent has held involuntarily in a mental hospital, there's at least some question as to whether or not he was competent to respond, or understand the nature of the proceedings.

The grounds for bringing a motion to vacate, and the steps needed to bring it, depend a great deal on the specific facts, and timing. There are specific time-limits for a motion to vacate for various grounds, and if those time-limits are missed, the right to vacate the judgment may be lost.

Respondent, or someone on his behalf, should review all the facts of the situation with an experienced family law attorney immediately to make sure these rights aren't lost.

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