We have no children and the property was awarded to me as my sole and separate property. We have no other assests or debts. Can he file for a trial setting after the final judgment has been entered?
2007-11-26 19:49:43 · 5 answers · asked by Free 1 in Politics & Government ➔ Law & Ethics
He does have an attorney and has had this attorney for three months. The court date for the default judgment was posted two months before the trial. I filed for divorce 12/06 and my ex signed the divorce petition but did not file a response. This is the first document he and his attorney has filed.
2007-11-27 01:34:26 · update #1
In my state and under the rules of states that follow the Rules of Civil Procedure (California does not), he has 30 days to file a Motion to Set Aside the default judgment and have a trial. If he has a very good reason--an emergency--for missing the Court date and a very good reason for not asking for a continuance, he would have a chance to set aside the default judgment. How good a chance? I don't know--why did he fail to appear? He would have to have what the Court calls a "compelling" reason to set it aside and he would have to have filed his Motion to Set Aside at his earliest opportunity. In my state, if it's 30 days old, he's out of luck. If he does get it set aside, find out what he wants and see if there is any possibility of a compromise. Minor items of property are just things and often not worth fighting over.
2007-11-26 23:21:56 · answer #1 · answered by David M 7 · 3⤊ 0⤋
Yes, he may file for a appeal for a re-trial, but the burden is now on him. He has to prove that he was not able to attend do to some reason out of his control, i.e. not being served, or not being being given proper notice. His lawyer must obtain affidavits from those involved stating that he was not allowed to attend because he genuinely did not know about the hearing. The judge will then decide based on that testimony whether to throw out the judgment and reward him with a new trial.
These things are really 50/50 because some judges do not like to issue default judgments if the one of the parties clearly wishes to dispute the claim. While others do not like to revisit claims where they feel that both parties had sufficient time and resources to appear. Also, the judge may not want to take a chance that his ruling will be appealed if he denies your ex's opportunity to present his case.
2007-11-26 20:04:25 · answer #2 · answered by Anonymous · 1⤊ 0⤋
Check with your attorney to find out how the Notice of Hearing was served.
If your ex can if he can prove if there is no proof of service he can claim that he was not served and not aware of the date of the Hearing.
Is common if served by the Sherriff's office, which is most common because there is no charge, as they just mail out regular mail...where I live the do not even use a typewriter or computer, somebody just hand scribbles and the last known address (any many times incorrectly) and sends it out.
Even if the notice was sent out Certified Mail, which is next common method but cost around $5, if he never signed for it the envelope (people who are in litigation commonly do no pick up certified mail or if someone at their place of employment signs for it they can still assert it was never given to them) he can claim he was not served.
Only way for certain is to hire a private process server to hand deliver it to your ex, but it is much more pricy depending upon how difficult it is to locate your ex - would start around $30-50 or more per attempt.
Not sure what you mean by "property" (real estate, personal property, photos, etc.?)awarded to you as sole and separate property but as you indicate there are no other assets or debts or children, whatever "property" it is has to be the issue.
If it was anything that was acquired during the course of the marriage it could end up where one party could be ordered by the other party to pay the party that it is decided to possess the property a percentage of the fair market value of that property or the Court could order the property be sold and the proceeds be split however they deem.
Know a guy that he and his wife drug their divorce out two years longer than it needed to be and spent more money in legal bills than it would have cost for both of them to buy a brand new coffee maker and video camera, which were the issue.
2007-11-26 20:21:22 · answer #3 · answered by bottleblondemama 7 · 0⤊ 0⤋
I don't think so. By not showing up for the hearing he defaulted, which means he gave up his rights to the property. He might get a hearing but it will be very hard for him to justify his non-appearance. Even if he was in a hospital, at death's door, he could still send his lawyer to appear for him.
I'd check with your lawyer just to be sure, but I don't think you have anything to worry about.
2007-11-26 19:58:40 · answer #4 · answered by Anonymous · 1⤊ 1⤋
Not legitimately. You may need to speak with a lawyer to find out how to quash the request for setting.
2007-11-26 19:55:50 · answer #5 · answered by Anonymous · 1⤊ 1⤋