Setting Aside Default Divorce
Divorce proceedings begin when the plaintiff files a complaint for divorce in the family law court where the defendant, resides. If there are minor children, the spouse who files the complaint lists all of their names and addresses, usually requests custody, and child support amounts.
Whether there are children or not, the complaint also includes a list of property owned together by the spouses and how the plaintiff proposes the property should be divided. The same is true for division of debts. The plaintiff may ask for spousal support.
The court then issues a summons which is a document that notifies the defendant that he or she is being sued and tells them how long they have to respond to the complaint. The summons, along with the complaint, must be served in person on the defendant by someone other than the plaintiff. As proof the defendant was served, the person who gave the summons and complaint to the defendant files an affidavit with the court confirming the date and time of the service.
The defendant, must file an answer to the complaint within 20 days of receiving it and serve a copy of the answer on the plaintiff. If the spouse does not file an answer in the 20 day period of time, the plaintiff can ask the court to enter a default judgment. When the court enters the judgment, the plaintiff almost always gets everything that was asked for in the complaint. After the court enters the default judgment, the plaintiff must prepare a document called “Notice of entry of Judgment” and mail it to the defendant.
If a default judgment has been entered against you, you may still have a remedy. The law provides a way to set it aside. If your motion to set aside the default judgment is granted, you are returned to the position you were in prior to the entry of the default, which is married with a divorce complaint filed.
In most cases, you must file your motion to set aside a default within six months of the date the default judgment was entered. When you file the motion, the court clerk will set a hearing date where both you and the plaintiff will be allowed to present evidence. You must mail your motion along with the hearing date to the plaintiff.
The plaintiff has a right to file a written opposition to your motion. This is an attempt to convince the court not to set aside the default. You get the last word and can file a reply to the plaintiff’s opposition.
The main reasons a court may set aside the default include:
- You failed to answer due to a mistake, inadvertence, excusable neglect or surprise.
- Misconduct by the plaintiff, such as misrepresentations or fraud caused you to believe you did not need to respond.
- Despite the plaintiff’s claims, you never received personal service of the complaint.
In one landmark case, a woman filed for divorce from her husband. He was properly served, but a week after that, the couple reconciled and the husband moved back home. He assumed the divorce was called off and never filed an answer to the complaint.
About 19 months later, the wife obtained a default judgment, brought the Notice of Entry of Judgment home and gave it to her husband. She also served him with an order for him to vacate the premises. Within days, he filed a motion to set aside the default. The Nevada high court agreed with him and set aside the default finding that several of the grounds could apply including the defendant’s surprise and mistake in assuming the divorce complaint was invalid and the plaintiff’s misrepresentations that they had reconciled.
At the hearing, both you and the plaintiff may present evidence to support your side of the case. At the close of the hearing, the court may make a decision and tell you then whether your motion will be granted. The court may also take the motion under advisement and issue its opinion days or weeks later.
If the judge denies the set aside then the divorce is final. If the judge grants the set aside then you are still married and must start the divorce process.