In July 2011, my wife had her mother serve me with divorce papers in our home, but before I could read them, my wife took the papers from me, ripped them into shreds, threw them in the trashcan and said she had changed her mind. I never received any other communication regarding that petition. Later in the year, she told me I needed to find another place to live since she had served me papers. After continued references to these papers, I went to Norwalk Superior Court, CA in early May 2012 to see if she had actually filed. I received a copy of the paperwork at that time. Always hopeful that we could resolve our differences, I thought she had dropped the petition until June 1, 2012 when she again had her mother serve me divorce papers, this time dated June 1, 2012. I responded to that petition on June 22, 2012, and filed Proof of Service with the court. On June 28 she notified me by certified mail that she had filed a Request to Enter Default on May 8, 2012. We have a hearing date July 2, 2012 at 8:30am; is it likely that the judge will accept her Request to Enter Default and not allow me to respond? Besides providing a detailed timeline showing I was not notified in a timely manner, what can I do/ask so that judge allows me to present my response?
State/Country relating to question: California
Am representing myself, but spoke to a lawyer for strategy advice, and was preparing paperwork/argument to plead my case as the parent most fit for custody based on my emotional and financial stability, as well as detailed plans for the immediate health and safety of my children with the support of my extended family. But I received the notice of Request to Enter Default very late Thursday evening, and was unable to reach the lawyer I originally consulted on Friday.
If your spouse tore up the papers after you were served, you need to file an objection to the default based on improper service of process and you would need to argue this in your hearing and explain what occurred to get the court to deny the default and allow you proper time to answer the divorce. The long delay here is going to support your contention of what occurred. I am afraid this is all you can do because if she insists on proceeding with the default the court will order you served with the petition and will set more time for you to answer the petition and then the divorce will proceed. You really should engage an attorney at that point and proceed through the divorce process.
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You wrote: "if she insists on proceeding with the default the court will order you served with the petition and will set more time for you to answer the petition and then the divorce will proceed." I need to understand this statement: so when I file the objection, the court can either 1) deny her request based on my explanation and we proceed with the hearing as if the supposed default never happened; or 2) my wife can insist that the default is valid, the court agrees with her, but sets a new hearing date to allow me time to respond to the petition for divorce. So in either scenario, I would eventually have the opportunity to present my response, is this correct?
No, I am sorry I was not clearer for you. You file the objection and if the court agrees you were improperly served then the court will deny the default and set time for you to answer. If the court agrees that default should be entered, however, then the court will grant the divorce right then and give her everything she asked for in her petition for divorce and you would then have to appeal the default to the appeals division.
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