Thursday, June 7, 2007

Setting Aside a Default Judgment

Family Law and Divorce Help from lawyers serving the Temecula, Murrieta, Hemet and Riverside areas of Riverside County, California.

A default judgment is an order which was obtained without one person being present at a court hearing. This can occur in a number of ways. The most common reason a default is taken against a person is because that person fails to file the divorce paperwork with the court after he or she is served. Often times, a party receives paperwork and does not understand the significance of it. Rather than consult an attorney right away or file family law paperwork with the court, that person fails to take any action through the family law court.

In either case, if a default judgment in a family law case results in a court order that is unfair, the party who was default can set aside the order. The law in the state of California is that a party may set aside a default if he or she did not participate in the family law case through his or her own inadvertance, mistake or surprise. He or she normally has six months to set aside the divorce or paternity judgment or order.

Once a lawsuit is filed and the person is served (the person who is served is called the Respondent), the Respondent has 30 days to file an answer. This is a document filed with the family law court which tells the court that the Respondent intends to participate in the case and wants to be present in court any time the judge is going to make a court order. If the Respondent fails to file the answer to the paternity or divorce matter for whatever reason, the Respondent's default is taken and the case proceeds without the Respondent's participation.

It is relatively easy to set aside any orders made in a family law or paternity matter by a court while a Respondent is in default so long as the Respondent has a good excuse for not filing. Examples of what the family law court would consider a good excuse include the Respondent believing the parties had a prior agreement, the Respondent not understanding the paperwork, the Respondent not receiving the paperwork, the Respondent being out of town and unable to file a response, or the Respondent paying someone to prepare the divorce or paternity paperwork, but the paperwork wasn't completed in time.

Not every divorce or paternity judgment or order needs to be set aside. Only those that are unfair.

The procedure for setting aside a family law default is to file a motion with the court, commonly called a 473 Motion (named after Civil Code Section 473). This motion explains to the court why the Respondent did not file a paternity or divorce answer when he or she was supposed to, contains a copy of the answer, and includes a copy of the law which tells the judge on what basis the Respondent is seeking to set aside the order. If the court grants the motion to set aside the default and/or any subsequent orders, it is as though the hearing never took place. Any orders made at the hearing are vacated, or wiped away, and a new hearing takes place at which the Respondent is allowed to participate.

California courts have a strong public policy to hear cases based upon the merits. Default divorce and other family law judgments and orders are disfavored. So long as a party acts as soon as he or she learns of the situation, it is highly likely the family law court will grant the Respondent's 473 Motion and allow the Respondent to participate in the proceedings.

Finally, a 473 Motion is complicated. A party has only one chance to request this relief. It is highly recommended that if you are in default or an order was made without your presence that you seek immediate legal advice from a competent divorce and family law attorney.

If you reside in the areas of Temecula, Murrieta, Hemet, or Riverside, and you have a family law matter, please telephone our office for a free consultation with one of our lawyers at (951) 816-9543.

Otherwise, please visit one of our websites for more information: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecountyc.om/ or http://www.familylawyerintemecula.com/

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