Vacating a Default Judgment in Family Court
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What is a Default Judgment?
If your spouse serves you with a divorce petition (sometimes called a complaint), you must answer it within your state’s time limits. If you ignore the petition or fail to appear at court, your spouse can request a default judgment.
A default judgment is a binding court order that grants the divorce and typically gives your spouse everything he or she demanded in the petition. Importantly, the judge will not consider your side of the story—which could have changed the court’s division of marital property, parenting plan, alimony, and child support orders.
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Can I Move to Vacate a Default Judgment in Family Court?
Under certain circumstances, you can vacate a default judgment in family court. Typically, you must file a motion to vacate with the family court and provide evidence that your non-response is excusable. However, you should act quickly. The longer you wait, the less likely the judge will be to vacate the default judgment.
What Do I Need to Prove In Order to Vacate a Default Family Judgment
To vacate a default judgment, you must prove that your failure to respond was due to:
- Mistake: You reasonably misunderstood the facts or the law.
- Inadvertence or surprise: Examples include when the petition was served in a way that left you with an unreasonably short time to respond, or you thought someone was responding on your behalf.
- Fraud or misconduct: The petition was never served or other serious misconduct occurred.
- Duress: You were coerced into not responding.
- Excusable neglect
In other words, you must have a very good reason for your inaction. It is important to explain the circumstances surrounding your default in detail.
Additionally, you may have to show that there are legitimate defenses or legal issues the court needs to consider. For example, you may argue that the default judgment is not in your child’s best interests or that a property distribution violates your nuptial agreement. If you need help, consider contacting an experienced family lawyer.
Do I Need an Attorney In Order to Get Relief From a Default Judgment?
Vacating a default judgment is a complicated matter. It is probably in your best interest to hire a family law attorney to help you file and present your request to vacate. And, if your motion is approved, a lawyer can help you navigate the divorce process (including distribution of property, child custody, and support payment calculations).
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Last Modified: 09-27-2017 12:41 AM PDT
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