If you do not respond to a divorce petition or you respond past the deadline, the judge may enter a “default judgment” against you. In a default divorce, the court essentially understands that you did not want to respond, and the case proceeds without you. This means the divorce will be granted and any chance you had to negotiate terms goes away. Before the default judgment, you always have the chance to contest the terms of your divorce case. If you are too late for that, you may be able to fight a default in some cases. The Ventura divorce lawyers at The Law Offices of Bamieh and De Smeth explain.
Can You Avoid a Default Judgment in Divorce?
Avoiding a default divorce is as simple as responding to the petition and participating in the case. A Santa Barbara divorce lawyer like those at Bamieh & De Smeth can guide you through this process, handling much of the process on your behalf. While you may need to appear in court and answer some questions, you can always avoid a default judgment by simply responding and participating in the divorce case.
When your spouse files for divorce, you will be served with divorce papers and get the chance to respond in court. The “petitioner” who files for divorce must give the “respondent” proper notice of the divorce and serve them with the court documents according to strict procedural rules. The respondent also must follow procedural rules and respond to the petition under the deadline.
If you refuse to respond to the divorce petition or you wait too long to respond, the court will go ahead with the divorce without you. This means you forfeit the right to be involved in the proceedings and have your views heard. This is detrimental in vital in cases involving child support, child custody, and spousal support.
Do I Have to Contest a Divorce to Avoid Default Judgment?
A “default divorce” is technically different from an “uncontested divorce,” though many people use these terms interchangeably. If you do not respond to the case at all, it will be a default divorce. On the other hand, you can respond to the petition, appear at court dates, but simply not argue against the divorce or negotiate terms of an agreement. This is an uncontested divorce.
A respondent always has the choice to simply allow a default to happen, but you can also participate in the process and agree to the divorce without “contesting” it. In fact, this is often one of the best strategies with divorce.
If you are willing to work with your spouse, you may be able to form agreements and work toward getting a divorce that satisfies both of you. Although both sides are seen as “opposite” sides in a divorce case, many divorces see both sides working together to ensure that the divorce takes their goals and concerns into account. There is no need for a divorce to be a contest or a battle.
Can I Get a Default Divorce Overturned?
Once a judge enters a default judgment against you in your divorce case, you may be able to fight the default and get a second chance to respond to the case. There are a few reasons that a case might go into default when it shouldn’t, and you may be able to challenge the default or appeal the judge’s decision.
First, it is important for the petitioner to properly follow rules for notice and service with divorce cases. If you didn’t receive notice of the case or the papers were sent to the wrong person or the wrong address, the court cannot legally enter the default judgment against you because you did not have notice and an opportunity to respond. These defaults rarely occur because judges must have proof of service before ordering a default, but they can be overturned when they occur by accident.
Divorce cases should be fair, and defaults based on “mistake, inadvertence, surprise, or excusable neglect” should be set aside. The court does not expect everyone to understand divorce fully, and it knows that you might not understand the consequences of not responding, that you might be surprised by the petition, or that other problems might prevent you from responding to the petition. The court may reverse the default judgment if you petition them and support your request with proof of mistake or another issue.
A default judgment based on fraud cannot stand. The courts can always set aside a default judgment that was obtained by fraud, lies, duress, while you were mentally unable to understand the case, or because your spouse did not disclose their full finances to the court.
You may be able to use other grounds to request the default judgment be set aside, and your attorney can help you find the right justification. Especially if your case was a military divorce or the default judgment was patently unfair, you may be able to get it overturned and start the divorce case over.
Our Ventura Divorce Lawyers Offer Free Consultations
If you were notified that your divorce case defaulted or you lost your divorce case without the proper opportunity to respond and participate in the case, contact the Ventura family lawyers at The Law Offices of Bamieh and De Smeth today. Our attorneys help our clients with divorce cases and work to help them get the outcome they deserve. For a free consultation on your case, contact our attorneys today at (805) 643-5555.