If I failed to respond to my divorce papers and have now received a request to default notice, haveI lost all my rights to have a say in the divorce?

Asked on December 2, 2011 under Family Law, California

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If the default has been filed with the court, you will need to file a motion to set aside the default.  If the court grants your motion to set aside the default, the case is back on track and litigation will continue and you will have a say in the divorce. 

At the law library, look for default, motion to set aside in the index of Pleading and Practice.  This will give you the general format for a motion to set aside the default.  A motion requires a memorandum of points and authorities which is  supporting cases and other legal precedents.  Look in Points and Authorities at the law library for points and authorities in support of a motion to set aside a default.  File with the court your motion to set aside the default, memorandum of points and authorities supporting your motion to set aside the default and an attached proof of service.  The proof of service verifies the date of mailing your documents to the opposing party or opposing party's attorney.  You can either use a court form proof of service or you can write your own.  If you write your own proof of service, it just says that you are over 18 and the attached documents were sent via first class mail unless stated otherwise to ________ (name and address of opposing party or opposing party's attorney) on ___________ (date).  You sign and date at the bottom.  The date you sign should be the same as the date of mailing and the same date you file your documents with the court.


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