Can he contest a divorce that was granted by default?
Divorce cases represent some of the most hotly contested, emotionally charged legal proceedings in the U.S. judicial system. If you are heading into a divorce case, or in the midst of one, you undoubtedly have a number of significant questions. One issue that you may wonder about is whether your spouse can contest a divorce that was granted by default. As is oftentimes the case, the answer to this question is not a definite “yes” or “no.”
Understanding a Default Judgment or Default Divorce Decree
Before understanding whether or not your spouse can contest, or seek to have set aside, a default divorce degree, you need to have a clear understanding of what is meant by a default judgment. When all is said and done, a divorce case is a civil lawsuit. All civil lawsuits commence in essentially the same way.
When you file a petition or complaint for divorce, the next step is for your spouse to be served with a copy of a summons and petition or complaint. The summons is a legal document issued by the court that establishes the timeframe in which your spouse must file an answer with the court to a divorce petition or complaint.
A default judgment can be entered by the court if your spouse fails to respond to the petition or complaint in a timely manner, and as directed in the summons. In order to obtain a default judgment in this manner, the court will request that your or your legal counsel confirm under oath that proper service has been made on your spouse.
Defective Service of Process
One way in which your spouse can contest or seek to have a default judgment set aside is to contend that he was not properly served with a summons and petition or complaint in the case. Indeed, he can contend that he was no served at all.
If your spouse is able to demonstrate a defect in a manner service of the summons and petition or complaint was made in the case, he may have grounds to successfully have the divorce decree set aside. He will also likely need to take action to have a default judgment set aside within a specific time period. Oftentimes, state law utilizes a standard of reasonable time when it comes to seeking to contest a default judgment in a divorce case. In other words, if your spouse contests a default judgment within a matter of a few months after it is entered, that is likely to be deemed a reasonable time. On the other hand, if he waits for several years, barring some sort of exigent circumstance, this not likely to be considered a reasonable time.
Fraud or Deception
If your spouse alleges some type of fraud or deception associated with the manner in which a default judgment was obtained, that may provide sufficient grounds to have the decree set aside. Fraud or deception can come in many forms. However, any deception must be about something that is considered material. What this means is that some sort of deception over a small, minor issue is not likely to be enough to have a default judgment set aside. However, deception over some significant element associated with a divorce case may provide sufficient grounds for your spouse to have the default divorce decree set aside.
Will I get a copy of our settlement agreement?
Divorce proceedings represent some of the most emotionally and legally challenging types of court cases in the U.S. judicial system. If you are heading to divorce court, or are already there, you likely have a number of questions, and you likely will have even more as your case progresses.
The complexity and other challenges associated with divorce cases underscores the importance of retaining experienced legal representation. The reality is that you best protect your legal rights and interests in nearly any legal proceeding, including one for marriage dissolution, by retaining an experienced attorney.
As you progress through a divorce case, you likely will find yourself with some seemingly basic, but nonetheless important, questions. One essential question that you may have is will I get a copy of our settlement agreement. The simple answer to this question is yes you will obtain a copy of your settlement agreement. In fact, you will receive a copy of your agreement at a number of different junctures as your case progresses.
Negotiating a Divorce Settlement
When at all possible, a couple in divorce court usually is best served by negotiating a settlement between themselves. Ideally, each party is represented by a capable attorney, which makes settlement negotiations more efficient and effective.
During the course of negotiations, if all goes essentially well, a draft settlement agreement will be prepared. Both you and your legal counsel will receive this draft settlement agreement.
Although you may be represented by an attorney, it is important that you read the draft settlement agreement yourself. You need to make sure that you understands the terms and conditions of the settlement agreement. If you have any questions, you need to make sure that you obtain full and complete answers from your lawyer.
Final Draft of Divorce Settlement
Once all of the details of a settlement have been hammered out between you and your spouse, you will receive a final draft of a settlement agreement. You and your attorney once again will review the document. You both need to make absolutely certain that the settlement agreement accurately reflected what you have agreed to in your case.
Once you confirm the document accurate reflects your agreement with your spouse, you will sign it, usually in front of a notary public. Your spouse will follow the same process. When this is concluded, the settlement agreement is submitted to the court.
Certified Copy of Divorce Decree
Ultimately, the court will incorporate your settlement agreement into the final order of the court in your case, or the divorce decree. You may need an official copy of your divorce decree, which includes the incorporated settlement agreement, to take care of some of your affairs following your divorce.
A formal or official copy of a your divorce decree is called a “certified copy” in most jurisdictions. This is a copy of your divorce decree, and incorporated settlement agreement, that is verified or certified by the clerk of the court as being a true and correct copy of original court order. The clerk’s office affixes a stamp designating the certification of the document. You will receive a certified copy of your divorce decree as a matter of routine practice following the conclusion of your divorce case. You may actually request additional certified copies, depending on your specific needs following divorce proceedings.