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.