Setting Aside a Default Divorce

Posted: 17 December, 2021

Sam Davis came to me because he had served his wife with a Complaint for Divorce, and she had not filed a response A Complaint is the document requesting specific actions for the court to rule on. Sam was the Plaintiff and filed the divorce. He hired a process server to serve his wife Alicia Davis with the divorce papers. Alicia was the Defendant. If a Defendant does not file an Answer within 21 days of service the Plaintiff can ask the court to enter a default divorce. An Answer is the Defendant’s response to the Plaintiff’s divorce requests. Here are more details on the divorce process and what needs to be filed.

Sam was lost because his wife had not filed an Answer. It had been 21 days and he wasn’t sure how to proceed. I told him about a default divorce and what the next steps were.

Court rules state a Defendant must serve their Answer within 21 days after being served with the summons and complaint. The rule also states when a party has failed to file an Answer the other party may request a default.

I explained to Sam, if Alicia did not file any paperwork within 21 days, he can ask the court to enter a default divorce order. We would need to draft a Decree of Divorce that includes everything he requested in his Complaint for Divorce and submit it to the court. Because Alicia failed to file an Answer his Divorce Decree would be accepted.

We drafted the Decree of Divorce for Sam and submitted it to the court. The court reviewed it, signed it, and Sam was divorced. Sam was granted everything he asked for in the order. But the story does not end there.

A month after the Decree of Divorce was filed, Sam was back in my office because he was served with a Motion to Set Aside the Decree of Divorce. A Motion is where you request the judge to review something and make a change. Alicia filed a Motion asking the court to set aside the Decree of Divorce because she was not properly served the Complaint for Divorce.

I explained to Sam that his wife has the right to ask the judge to set aside the default Decree if she was not served properly.  Setting aside basically means to ignore it, to not consider it as an actual order.  I further explained to Sam any court order can be set aside for mistake, excusable neglect, or fraud if the request is made within 60 days of the order being filed.

If you your spouse entered a default within the last six months you can ask the judge to set aside the order. Court rules allows relief from Default Decree of Divorce if there was a mistake, inadvertence, surprise, excusable neglect, fraud, or misrepresentation by the party who filed the case.

Alicia claimed she was never served the documents. Sam a I knew she was property served. But Motions like Alicia’s are standardly granted because the court does not want one spouse to be given more of the assets, less of the debts, or some other relief that would be unfair.

Sam and Alicia had been married fifteen years and had acquired quite a bit of assets. In Sam’s Default Decree of Divorce, he asked for everything to be divided evenly, except the home. He had listed which bank accounts they each would have, which vehicles they each would have, which credits were responsible for, etc. But he had asked for $200,000 from the home instead of only $125,000. The home had $250,000 equity. In a community property state Sam would be entitled to half of the equity, which would be $125,000. Sam felt he was owed $75,000 more because of an inheritance he used as the down payment. Inheritance is looked at as separate property.

We reached out to Alicia’s attorney and agreed to set aside the Default Divorce Decree. We drafted a new Decree that divided the home evenly. Sam and Alicia signed, and the new Decree of Divorce was signed by the judge.

They did not have children, so child custody was not an issue. But if custody had been an issue the Default Decree would almost always be set aside. Our courts believe default custody orders are not absolute. And child custody is almost always modifiable because children change, and circumstances change.

What if Alicia had waited past the six months to file her motion? In that situation Sam might have been correct to oppose her motion. Six months is the standard deadline for filing a Motion to Set Aside. If Alicia had filed after this deadline the judge may have denied her motion. Alicia would be stuck with the Default Decree of Divorce.

What if Sam had filed a Default Divorce Decree and had not added all of the assets or debts he wanted? This is one of the common mistakes a divorce lawyer comes across. The Plaintiff gets a default and then files a vanilla Decree of Divorce without specific vehicles listed, without specific bank accounts, etc. This is a big mistake because it allows the Defendant up to three years to file a Motion for Omitted Assets.

If for any reason Sam had mistakenly missed an asset that was not included in the Decree, such as a retirement account or bank account, instead of asking the judge to completely set aside the Decree of Divorce, Alicia could do what is called an omitted asset claim. There are times when an asset or debt may be hidden, and not discovered until after the judgment. There are also times when a marital asset or debt did not become known to either party until after the judgment. In either situation, you need to modify your Decree of Divorce to include that omitted asset.

Court rule allows a party to file a motion in any divorce, annulment, or separate maintenance to obtain any community property omitted from the decree as the result of fraud or mistake. A motion must be filed within three years.

Sam had filed a detailed Default Decree of Divorce. He had listed the specific assets and debts each were taking in the divorce. In the end Sam’s divorce was settled evenly. Sam and Alicia divided the assets evenly and without spending a huge amount of money on divorce attorneys.