Divorced and Didn’t Know It

Posted: 17 September, 2019

Jake Hackenburg has been separated from his wife Sally Hackenburg for one year.  They are not legally separated just living in different homes.   They have been married for almost twelve years.  They don’t have any minor children.   He just recently found out, Sally filed for the divorce, and got a default divorce, without Jake being served divorce papers.

For the last year they have been living in separate homes and paying their own bills. Sally lives in the home they own.  It has about $200,000 in equity.  Jake lives in an apartment.

They each have their own vehicle.  They don’t share bank accounts anymore.   They are still connected on some of the bills.   He pays the mobile phone bill, which they are both on, and she pays the auto insurance, which they are both on.  He pays his monthly credit card bills, and she pays hers.

Last week, Jake came to us because he got a notice from his 401(K) that Sally presented them a court order, transferring half of the balance into her own 401(K).  Jake has a 401(K) with Caesars Entertainment Group.  Sally has a pension with Clark County School District and a separate 401(K).  Jake was confused with why, and how Sally was getting half of his 401(K).

He asked her about the 401(K) transfer.    She responds to his email saying, “I got tired of waiting for you to file the divorce papers.  I filed them, and it’s done”.    She wouldn’t respond to anything else.

We did some research and found she had filed the divorce, and was granted a default divorce. A default is granted when the other spouse doesn’t respond to the filed divorce papers.

Looks like Sally served Jake the divorce at the marital home, which he didn’t live at anymore.   Jake never got the divorce papers and failed to respond, as is required.  How could he respond?  Jake didn’t even know she had filed.  After Jake failed to respond to the divorce papers, the court entered a default.  The court awarded Sally everything she asked for.

Default divorces like this happen all the time.   When a spouse files the divorce, they are required to serve the papers at the other spouse’s last known address.  This is called process of service. By being personally served the divorce papers, you have been given proper notice that a divorce has been filed.   The spouse being served then has 20 days to hire a lawyer and file a response.

After the response is filed, the divorce process would start.   Most divorces settle after a few hearings.   On any issues the couple cannot settle on, the judge makes a final decision at trial.   With a default Sally is awarded everything she asks without a trial.   All because Jake didn’t respond.

What do you do when you didn’t even know your spouse was filing a divorce?   You didn’t know to respond, and they get everything.   Are you out of luck?

Typically, no.   If you catch the default divorce within six months, you can file a request with the court to set aside the default divorce.   The courts understand spouses may try and play tricks, or that mistakes happen.    If you file a request to set the divorce order aside, you would need to show the court that you didn’t respond because of fraud on the other spouse, mistake or excusable neglect.

the Nevada rule on setting aside orders states  that upon the discovery of a “mistake,” “inadvertence,” or “excusable neglect” by a party to a legal proceeding, that party has up to six months from the date of the order to motion the court.

An example of fraud is when a spouse serves the divorce papers at the wrong address, and they know it’s the wrong address.   Or they know the spouse no longer lives at that address. A good example of mistake or excusable neglect would be if you were out of the country and couldn’t respond.

Courts are not big fans of default divorces.  They want cases case to be settled on their merits, not on a technicality or fraud.    With a default divorce, Sally is going to get half of Jake’s 401(K), the entire house, and all of her pension.   This is not equitable.   All community property assets should be divided equally.  Sally shouldn’t get more than her share because she filed the divorce and didn’t properly serve Jake.

In this case, we needed to show Sally knew Jake was not living in the marital home.   Serving a person at a home you know they don’t live at is not proper service of the divorce documents.    We presented evidence showing Sally knew where Jake was living, and that Jake was never served the divorce documents at his address.

The court dismissed the default divorce order and gave Jake twenty days to respond to Sally’s original divorce filing.  The court erased the default order, and started the divorce case from the beginning.

Jake did eventually get divorced and the court divided the house, the 401(K)’s, the pensions, and all the other assets and debts evenly.  They made equal income so the court didn’t award alimony, and they didn’t have children so custody or child support wasn’t an issue.

Note:  Jack Hackenburg and Sally Hackenburg are not our client’s actual names.   These are fictional names used to protect the identity of our clients.