Can the respondent in a divorce case delay the proceedings by virtue of the fact that he is unable to physically appear in court?

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Can the respondent in a divorce case delay the proceedings by virtue of the fact that he is unable to physically appear in court?

My husband and I were married in NV but resided in CA. I still live in CA, but he is now back in his home country of Romania. He is not permitted to re-enter the US at this time because he is not a US citizen and he had overstayed his visa before he left. What are the implications of his inability to appear in any court proceedings? Could he use this fact to delay or complicate the divorce proceedings, assuming he was inclined to do such a thing?

Asked on February 9, 2011 under Family Law, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

That depends on if he is contesting the divorce or not.  The implications for starting the action would be serving him with the paperwork.  In order for the Court to obtain jurisdiction over him - the right of the court to make a decision regarding him - then he has to be properly served under California Law.  If he is properly served and does not respond to the action then you can obtain a divorce via default.  If he does respond and answers contesting the divorce,then life could be come difficult in that your attorney will need to at some point make a motion regarding his non-appearance.  The issue of serving him will always be in the forefront of the litigation.  If he does not contest he could possibly put in a notice of appearance and waive answering, and consent to the divorce. If he consents from the beginning he could possiblt waive service and you can enter in to an agreement for filing with the court.  Seek legal help with this. Good luck.


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