Filing a Motion to Set Aside a Default Divorce Judgment in California
Spouses can request to cancel a default judgment or order against them. Here’s how to file a motion to set aside a default divorce judgment in California.
To set aside a default divorce judgment in California, you’ll need to first complete the necessary paperwork and get it reviewed by an attorney. Then, file it with your local court clerk and get your court date. Serve the papers, file your proofs of service, and attend the court hearing.
What is a default judgment?
A default judgment is an order made by a judge when a party does not take a court-ordered action, so the court rules in favor of the compliant party. In California, a default divorce judgment occurs when a spouse fails to respond to the divorce petition within 30 days of receiving it. Default judgments in divorce likely grant the petitioning spouse’s divorce terms.
However, California spouses that failed to respond to the divorce papers can request a court hearing to set aside (cancel) the default divorce judgment. California has a specific procedure for spouses to request a court hearing to cancel a default divorce judgment. This process is complicated; contact one of our experienced divorce attorneys to properly file a motion to set aside a default divorce judgment.
Complete Necessary Forms
The first step of your motion to cancel a default judgment in divorce is to complete:
- Request for Order (Form FL-300)
- Declaration (Form MC-030)
- Response (Form)
- Memorandum of Points and Authorities
The Response you’ll need to complete will be a court form, but the exact Response you need to complete is dependent upon the circumstances of your case. Ask an attorney which Response form is right for you.
A Memorandum of Points and Authorities (MPA) is not a court form; it’s a written legal document that points out the laws that support your case. This document is both essential and difficult to complete; if it’s not properly and strongly written, your motion will likely be denied in court. Get in touch with one of our experienced divorce attorneys to properly fill out an MPA. Below is a sample Memorandum of Points and Authorities in California.
Sample Memorandum of Points and Authorities California
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Have a Lawyer Review the Forms
These documents must be completed and filed correctly; hire an attorney to review your request to set aside the divorce judgment before you file it with the court. One of our affordable, experienced divorce lawyers can help you complete and file these documents correctly.
Make 2 Copies of Each Document
Once you’ve completed the necessary forms and had them reviewed by an attorney, make two copies of each document. One set of copies is for yourself, the other set will be served to your spouse, and the original set will be filed with the court.
File the Forms and Get Your Court Date
File your forms with your local court. The court clerk will keep the original forms and hand the copies back to you, which will be stamped “Filed”. The clerk will also write the date for your court hearing on Page 1 of the Request for Order (Form FL-300). You’ll be asked to pay a $435 filing fee.
Serve the Forms
Once you’ve filed the forms with the court clerk, get someone over the age of 18 to serve one set of copies to your spouse, along with a blank Responsive Declaration to Request for Order (Form FL-320). For more information on how to serve divorce papers in California, click here.
File Your Proofs of Service
After your spouse has been served, have the process server complete their Proofs of Service using:
- Proof of Personal Service (Form FL-330) OR
- Proof of Service by Mail (Form FL-335)
You must file these papers with the court. It’s crucial to make sure your proofs of service are filed correctly.
Attend Your Court Hearing
Attend your court hearing to cancel the default judgment. At the court hearing, a judge may grant or deny your request to cancel the divorce judgment. If the request is granted, the default divorce judgment will be canceled and a new one will be put in place. If the request is denied, the default divorce judgment remains. However, you may have legal recourse if your request was denied; an attorney can help you appeal or file a request for reconsideration
FAQs About Motioning to Set Aside Default Divorce Judgments
Can a default divorce judgment be reversed?
Yes, default divorce judgments can be reversed in California. However, there are only certain situations when a judge may set aside a spouse’s judgment, including if:
- You mistakenly did not take the court-ordered action by your own “mistake, inadvertence, surprise, or excusable neglect.”
- The summons was not served to you properly
- The judgment against you was done fraudulently, mistakenly, under duress or perjury, or without legal compliance
When can you file a motion to set aside a default divorce judgment in California?
There are only certain situations in which a judge would set aside a default judgment. Spouses can file a motion to cancel a default divorce judgment if
- A court-ordered action was mistakenly not completed
- You did not have enough time to file a response
- The default judgment was obtained through illegal or unethical practices
Can you contest a default divorce?
In California, you can contest a default divorce by requesting to cancel the default judgment. Requesting to cancel a default judgment asks for a court hearing for a judge to set aside the judgment and put a new one in place.
How long does a default divorce take in California?
Default divorces in California take at least six months; this is because California has a six-month waiting period for all divorces. A default divorce will take a minimum of six months, and are typically completed within anywhere from six months to a few years.
What happens after a default judgment in divorce?
The petitioning spouse must complete a Notice of Entry Judgment (Form CIV-130) and serve it to the defendant, letting them know that the divorce has defaulted. The non-compliant spouse may be able to request to cancel the judgment in a court hearing.
How Can A Divorce Attorney Help Me Set Aside a Default Divorce Judgment?
Filing a motion to cancel a default judgment in divorce is difficult; don’t do it without an attorney. A skilled divorce attorney can help you cancel the judgment by preparing and filing the complex documents, serving the forms correctly, and representing you in court.
Contact Us
If you want to file a motion to set aside a default divorce judgment in California and need legal help, contact us. Our divorce attorneys specialize in helping clients cancel default judgments. Get your free consultation with the right divorce attorney today.