Default Judgment of Divorce May be Set Aside and Vacated on the Basis of Fraud

When one spouse files for divorce, the other spouse may respond to the petition in several different ways. One option is literally to “do nothing” and not respond to the petition. In such a case, it is likely that the court will grant the petitioner whatever he or she is asking for, such as requests concerning property, spousal and child support and custody and visitation matters. This course of in-action is considered a “true default,” and the person who fails to respond at all is essentially giving up the right to participate in the case – and to be heard.

There are various other ways to appropriately respond to a petition for divorce, each one replete with important legal considerations that must be addressed early on in the proceedings. To protect your family’s rights, it is important to contact a local San Diego family law who can guide you through the process while working to protect your legal rights.

In a recent California divorce case, the husband filed a petition for dissolution of marriage back in April 2006. The facts suggest that the wife knew about the pendency of the proceeding, as she stipulated to the appointment of a commissioner as judge “pro tempore,” and appeared in court on three separate occasions. However, the wife failed to respond to the petition. At the husband’s request, the court clerk entered the wife’s default. The petition proceeded by “declaration” and a default judgment was entered in February 2007. The request for entry of default and the notice of entry of judgment were not served on the wife’s correct address.

On April 30, 2012, the wife moved to set aside and vacate the default judgment on the basis of “extrinsic fraud,” claiming that she never received the entry of default and default judgment. The husband opposed the motion and argued that California Family Code Section 2122 governs the matter. Under Section 2122, a party may move to set aside a judgment within one year after the person discovered or should have discovered the actual fraud. The husband claimed that the wife knew or should have known of the entry of judgment of dissolution of marriage for the following three reasons: 1) she executed a grant deed to certain real property as an “unmarried woman” in February 2007; 2) she identified herself as “unmarried” in a loan application in May 2007; and 3) she was aware that the husband had remarried since she attended two court hearings in 2010 pertaining to a restraining order that the new wife filed against her.

The trial court noted that in order for the judgment to be set aside based on fraud, the wife would have had to learn of the fraud after April 30, 2011. Based on the evidence provided above, the court found that the wife was aware of entry of a judgment for divorce before April 30, 2011. The court of appeals affirmed, finding that the wife waited more than one year after learning of the judgment of dissolution before attempting to set it aside.

Although this is an unpublished opinion, the crux of the decision is important to consider: the statutory filing deadlines of matters in family law cases must be adhered to – otherwise a party could potentially lose recourse to legal remedies. If you are considering divorce, it is imperative that you contact a local family law attorney as soon as possible to preserve your rights.

Roy M. Doppelt has been representing parties in divorce matters for more than 20 years. Doppelt and Forney, APLC serves clients throughout Southern California, including San Diego, Encinitas, La Jolla, and Chula Vista. For a free consultation, contact Doppelt and Forney, APLC through our website, or give us a call toll-free at (800) ROY IS IT (769-4748).

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