California Divorce Default Set Aside Process & Reasons
Hi, Tim Blankenship here with divorce661.com and the purpose of this video is to explain the process of setting aside a default. So let me set up the scenario real quick. So one of the spouses filed for divorce, 30 days went by and could have been 30 days or a year and the default was filed.
This is when the response is not filed. The petitioner will file a request and or default which basically pushes the respondent out of the case and can no longer file a response or participate. At least that’s what it does in theory and practicality. However, there is a way to get around this, so if a default is filed against you, you can file what’s called a request to set aside the default.
There’s a couple reasons you need to know about in order to do that. You have to file a motion with the court. It’s a request for order for methol 300 and you also need to file your response. So this is how this plays out. The defaults been filed, you want to file the response, you now want to participate or whatever happened has changed and now you want to be a part of the case but you can’t file the response because the defaults been entered.
You file a motion with the court to request the judge to set aside the default. You file the motion and you also file the response at the same time. So what you’re asking the court to do is to set aside the default and to file the response at the same time. This does require a hearing. You have to file a motion. Get a court date, serve the other party and then appear at the hearing and explain to the judge why you think it should be set aside.
Again, there are I believe 4 reasons why you can set aside a default. Just off the top of my head one is a surprise, meaning you weren’t aware that it was going to happen or it could happen, and there are some other reasons. You have to generally within 6 months of the default being filed so you can’t wait 2 years and say oh now I want to be a part of the case and want to set aside the default, but those are the rules.
You have to file a motion, get a court date, you have to file your response at the same time and generally what they’ll do is they’ll hold the response until the judge sets aside the default and there is reason why I did this video today is because we just did a request to set aside default, file the motion, submitted the response with the filing fee check of 435 dollars and I told the client the courts will hold that until the judge approves the set aside in order to file the response because the court and the clerk cannot file the response if the defaults been entered.
So the fact that in this case the response was filed I think was a mistake on the clerk’s part because generally speaking, unless they’ve changed policies, which they couldn’t have because the response couldn’t have been filed as I speak about this as I’m speaking. The clerk could not have filed the response with the default being filed so, in this case I believe the clerk did make an error, but generally what will happen is you file your motion, right now it’s a 90 dollar fee.
You attach your 435 dollar check to the response and they’ll hold it until the time of the hearing and at that time if the judge decides to set aside the default then they’ll file the response at that time. Tim Blankenship, divorce 661.com if you need any assistance with your divorce anywhere in California feel free to give me a call 6612810266, or you can always schedule a consultation right on our website at divorce661.com. Have a great day.