Legal Question in Family Law in California
Amended Petition/Default
My divorce case was entered into default status in Oct or Nov of 2005 - The court sent papers indicating that the status was default. Default judgement papers were sent in and during the court processing of the papers, it was determined that an amended petition needed to be served. I am now concerned that, due to the amended petition, the divorce case is no longer in default and we are starting all over again.
Despite the amended petition, is the case still considered in default (there were no court papers indicating otherwise)?
Can the divorce be contested if my wife gets a lawyer at this point, or does she have no ability to contest if it is in default (again considering the amended petition)?
thanks
2 Answers from Attorneys
Re: Amended Petition/Default
If she answers, I recommend that you try to negotiate a settlement which can be submitted to the court for the judge's signature. Make sure you find an attorney who understands how to do this so that you don't have to appear in court.
Re: Amended Petition/Default
An amended petition must be served with an amended summons and starts the 30 day clock running again. It would be completely unfair to allow you to amend the petition and not give her the opportunity to respond. It's called "due process" and is guaranteed by the Constitution. If the amendment makes no sustantial change she should be willing to allow you to proceed by default still but if she does obtain an attorney you should extend time for her to answer. That way you may still reach an agreement that you will proceed by default. If no agreement is reached as the 6 month date nears you may then consider demanding that she file a response and request a trial date.
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