Can You Get A Default Divorce Overturned?

When you're served with divorce papers, you must respond within a certain period of time. If you fail to do so, your soon-to-be ex-spouse may ask the court to enter a default judgment, which typically automatically grants the person everything he or she was asking for in the divorce petition. As you can imagine, this can result in a significantly negative outcome for you, and you may be wondering if you can contest the judgment. You can, but only in certain situations. Here's more information about this issue.

Contesting a Default Divorce

In general, a default divorce judgment cannot be appealed. However, you can request the court vacate the judgment. Essentially, you are asking the court to wipe the slate clean. If the court grants your request, the divorce proceedings would start over from the beginning and you would get a chance to present your case.

However, it can be challenging getting a judge to overturn a default divorce. First, you typically must file a motion to vacate within a certain period of time after the judgment was entered into the record. This time limit varies between jurisdictions. For instance, you only have 30 days after you receive notice of the judgment to file a motion to vacate at the Superior Court of Orange County. If you weren't notified about the case or weren't served properly, you have 180 days to file.

Regardless of the amount of time your state gives you, failing to meet the deadline usually results in you being permanently barred from contesting the default judgment.

Second, you must provide the court with an acceptable excuse as to why you didn't show up in court, and the judge will generally only accept the following reasons:

  • Mistake (e.g. the notice had the wrong date)
  • Misconduct (e.g. the plaintiff's attorney purposefully mailed the notice to the wrong address)
  • Excusable neglect (e.g. you were incapacitated due to a car accident)
  • Fraud (e.g. the plaintiff lied to the court about your location)

The court may also grant your request if the demands in the divorce petition are irregular or the best interest of the children was not considered.

In the Courtroom

If the judge finds the reasons for your absence to be acceptable, then he or she will overturn the judgment. If not, the judgment will stand and you'll have to live with the terms of the divorce decree. Also, be aware that even if the judge does vacate the judgment, the plaintiff can appeal the judge's decision to a higher court.

Getting a default divorce is possibly the worst way to separate because your needs may not be accounted for in the divorce petition. If you find yourself in this situation, consult with a divorce attorney, like those at Bray & Johnson Law Firm, who can advise you on the best way to proceed.