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What Happens If The Other Party Takes My Default?
Posted on March 12, 2014
When you are served with a summons and petition for dissolution or a petition to establish parental relationship, you are advised by the notice on the summons that you must file a response within 30 days. If you do not file a response your default may be entered. This does not happen automatically, the other party must request the entry of your default. As a consequence of the default, you are not allowed to appear in the action and you will not receive further notices of filings or court proceedings. You will be at a serious disadvantage because the initiating party may seek an order from the court for any relief requested in the petition.
All is not lost, however, because in most cases, where the other party is represented by an attorney, and you seek relief within a reasonable period of time, the other party will stipulate to set aside the default. In rare cases, a party or an attorney will refuse to set aside the default. This does not usually occur unless the defaulting party has waited more than six months to request the opportunity to appear in the action, or the defaulting party has ignored numerous demands to file a responsive pleading.
If the other party refuses to stipulate to set aside a default, you must resort to filing a motion for relief under Code of Civil Procedure §473. Code of Civil Procedure §473(b) provides relief from default under the following circumstances:
“(b) The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. ***”
The relief provided for by Code of Civil Procedure §473 is highly favored and is liberally applied in order to carry out the public policy of permitting a trial of disputed matters on the merits. Relief under §473 is especially favored and liberally applied in family law matters because of the personal relationship that exists between the opposing parties. A motion for relief should be filed as soon as possible, and in no event more than six months after the defaulting party receives notice of the default. Because relief is only granted if the supporting declaration shows that the default occurred because of mistake, inadvertence, surprise or excusable neglect it is very important to have a competent attorney draft the motion and supporting declaration. A court that does exercise its discretion to grant relief under §473 will very rarely be overturned by an appellate court.
If your default is taken consult a competent family law attorney as soon as possible.