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11 Oct 17

Can he contest a divorce that was granted by default?

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When it comes to legal matters, wording is particularly important. Using the right word to describe a specific form, idea, or process is critical to ensuring the outcome you seek.

In this instance, you are asking if he can contest a divorce that was granted by default. The answer to that question is no, he can’t. However, he can petition the court and ask to vacate the default divorce judgment.

Contesting a divorce

When a divorce is filed, there are three ways it can go: contested, uncontested, and default. Uncontested is when both parties agree on all the major issues. Contested is when there is at least one major issue (potentially even the decision to divorce) that the couple does not agree on. Either of these occur when one party files for the divorce and the other party answers.

A default divorce is granted when the respondent (the spouse who didn’t file) doesn’t respond. Many times, this happens after the petitioner has tried and failed to find their spouse, has notified by publication, and then been granted the divorce by default. This also means that the petitioner gets everything they asked for in the petition.

Vacating a default divorce

Sometimes the respondent had a good reason for not responding. Examples of valid reasons for not responding would be having been in an accident, being hospitalized, or a verifiable family emergency. Additionally, if he could prove that you didn’t serve him or some other reason that he wasn’t properly informed, he may have a case. If the respondent has a valid reason, he can file a motion to vacate the default divorce judgment. he would need to prove his reason for not responding.

He will also need to prove that, had he answered the initial petition, he would have provided information that might have changed the court’s mind about something that was ordered in the default divorce. In other words, he must be able to show that something you were granted in the default divorce wouldn’t have been granted to you.

When he files that motion, the judge can either agree to vacate the default judgment, or he can decide that your spouse’s reasons aren’t valid and the divorce stays final.

Is there a deadline by which he has to file the motion to vacate?

Legally, there is no deadline by which he has to file. However, the longer he waits, the less likely it is that the judge will grant his request. The sooner he files, the better it would be for his case.

What happens if his motion to vacate is granted?

If he files a motion to vacate, and it’s granted, then the two of you will be returned to the position you were in before: married with a divorce complaint filed.

Obviously, being returned to a married state may create a very sticky situation if you’ve already remarried, or are about to. This is why it can be very important to speak with an attorney to discuss your situation if you think your former spouse may file a motion to vacate a default divorce.

If you suspect that your former spouse might file a motion to vacate your default divorce, you should call a lawyer immediately to discuss the specifics of your case. A good attorney can help you figure out whether your former spouse has a valid claim, and what your next steps should be. It is very important that you do not try to deal with this on your own, because it can be much more complicated than you think.

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