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LADY LAWYER, Family Law Attorney
Category: Family Law
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Experience: Family Law Attorney
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Wife cheated on me after 20 years of marriage with a childhood

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Wife cheated on me after 20 years of marriage with a childhood friend of mine. I filed for divorce (California) December 2, 2011. She failed to respond within 30 days, actually never did. I filed for Default in March, but not represented by attorney, paperwork kept coming back to me. I finalized my Default on June 4. She filed a motion to show cause/set aside default June 8. I have been yet to be served (assuming 30 days July 8, today July 3). Called court clerk, response was that I need to show up regardless of being served and inform judge that (1) I was never served, (2) she failed to respond to the initial divorce filing and (3) that too much time has gone by for her to respond now. I requested that I get 100% physical custody of my 3 girls (20, 17 (soon to be 18 in November), 15), the house, and everything. She is to keep her car and her personal belongings. I do not want alimony or child support.
My questions are, "When I go to my court hearing in August, what can I expect from the judge and how can I be prepared?

Submitted: 12 months ago.
Category: Family Law
Expert:  LADY LAWYER replied 12 months ago.


LADY LAWYER : Hello, Thanks for choosing Justanswer.com! I look forward to helping you today.
Customer :

Hi

LADY LAWYER : Hi! The hearing the you will be going to will strictly be dealing with whether the judge is going to set aside the default judgment or not. The judge will not deal at all with the terms of the divorce.
LADY LAWYER : How were you made aware that she file this motion if you were not served?
Customer :

I called the clerks family law department today. The clerk mentioned that I should have been served. I'm assuming that I need to be served within 30 days of my soon to be ex-wifes filing on June 8.

LADY LAWYER : Okay. I would go ahead and show up then too because the paperwork isn't always right and. Have had process servers that say they have served someone and never have.
LADY LAWYER : But like the clerk said, you will want to say that you were never served properly.
LADY LAWYER : You don't want to focus too much on that because the judge can just delay the hearing until you are served.
Customer :

That I understand.

LADY LAWYER : You are wanting to get him or her to rule that her motion to set aside is denied.
Customer :

yes

LADY LAWYER : So I would really just say you are willing to waive proper service and go ahead and make your arguments.
LADY LAWYER : From what you have told me, she was properly served with the divorce, correct?
Customer :

Yes.

Customer :

How do I be prepared to show that I am in the right with my paperwork and to get what I am asking for?

LADY LAWYER : Excellent. In that case, she would not have any legal reason under the law to have her motion granted.
LADY LAWYER : That said, the judge will have broad discretion in this matter and can still technically grant her motion even if she doesn't fall under the proper legal requirements.
Customer :

Why would she not have legal reason?

Customer :

Ahh.

Customer :

So what can I do to be better prepared when I see the judge?

LADY LAWYER : There are specific reasons under the law that the court can use to grant the motion. If you give me a few minuts, I will let you know what they are and then your best argument is going to be to say she doesn't meet any of the following criteria.
LADY LAWYER : Minutes
Customer :

ok

LADY LAWYER : California Code of Civil Procedure sections 473(b), 476(d) and 473.5 specify the grounds on which you can base a motion for relief of default or default judgment. Permitted grounds include:
LADY LAWYER : Mistake (CCP 473(b)):A mistake of fact occurs when a person understands the facts to be other than they are. A mistake of law occurs when a person knows the facts as they are, but has a mistaken belief as to the legal consequences of those facts. Ignorance of the law or negligence in researching the law does not constitute excusable mistake, and therefore is not grounds for relief from default.
LADY LAWYER : Inadvertence (CCP 473(b)):Inadvertence stems from a lack of attentiveness, inattention, or fault from negligence. However, mere inadvertence does not warrant relief unless, on consideration of all the evidence, the inadvertence is excusable. Forgetting about the case or mislaying the summons and complaint are not sufficient grounds for relief. Inadvertence is often combined with excusable neglect.
LADY LAWYER : Surprise (CCP 473(b)):Surprise occurs when a party is placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary prudence would not have guarded against.
LADY LAWYER : Excusable Neglect (CCP 473(b)):To be excusable, the neglect must have been the act or omission of a reasonably prudent person under the circumstances.Forgetting about the lawsuit, being too busy to properly respond, or being unable to afford an attorney are not grounds for excusable neglect. Examples of excusable neglect include:Illness that disables the party from responding or appearing in courtFailure to respond because you relied on your attorney to do soFailure to appear at trial because you relied on misinformation provided by a court officer.
LADY LAWYER : Party not given "actual notice" in time to defend (CCP 473.5):If service of the summons did not result in "actual notice" to a party in time to defend their case, the default may be set aside. "Actual notice" means the party genuinely knows of the litigation. Lack of actual notice cannot be caused by the defendant's inexcusable neglect or avoidance of service.
LADY LAWYER : So...those are the reasons she could have to get her motion granted. You are going to argue that she doesn't meet any of that criteria,
Customer :

This is great info, but did you have something for 476 too?

LADY LAWYER : That code just repeats what is in 473, so you're covered for all of them.
Customer :

Wow, I'm impressed with what you have shared with me. Is there anything else that you suggest that would help me have a strong showing in court?

LADY LAWYER : It also deals with time limits, but she has met that requirement. Still, just so you know, here is the rest of that:
LADY LAWYER : There are different time limitations on when a motion to vacate can be filed: A) Within 6 months after entry of the default judgment on grounds of mistake, inadvertence, surprise or excusable neglect, or had no actual notice in time to defend the original case. B) Within 2 years of the default judgment if service did not result in actual notice in time to defend. C) At any time after the judgment is granted, if the motion is made within a reasonable time after the discovery of the existence of the judgment. (This last one is a giant "loophole".)
Customer :

Ok. What are my options if the judge sides with my soon to be ex?

LADY LAWYER : Just that if he does grant her motion, you will be right back to where you were as if she answered your petition.
LADY LAWYER : You will have to move ahead with mediation and trial if you cannot reach a settlement.
Customer :

You're quick.

LADY LAWYER : I try. :)
Customer :

Thanks for all your help. I am very impressed.

LADY LAWYER : I try to anticipate the qcustomer's questions.
Customer :

Very, very impressed.

LADY LAWYER : They would be the ones I would ask!
Customer :

You are good at what you do, that's for sure.

Customer :

Great, actually.

LADY LAWYER : Well I am so glad I could help! Also, please note that any time a customer leaves me appositive rating, I will allow them to come back at any time to as my more follow up questions at no additional charge.
LADY LAWYER : So if you have more questions as the divorce is ongoing, just sign back on, come back to this question and leave me a reply. I will get back to you within a day or so.
Customer :

That is good news! Thanks again. I will provide a score of Excellent Service! How ould I need to contact you , to follow up if needed?

Customer :

You've been doing this for a while... :)

LADY LAWYER : If you come back to Justanswer and sign in, you will see this question under your " my questions" section. Just click on that and reply.
LADY LAWYER : Yes, since 2008. Everyone needs access to affordable legal info.
Customer :

Will do. I know I do.

Customer :

Thanks again!

LADY LAWYER : Thank you! It was my pleasure helping you.
LADY LAWYER : Did you have any further questions at this time?
Customer :

Sorry forgot to hit submit for Excellent Service!

LADY LAWYER, Family Law Attorney
Category: Family Law
Positive Feedback: 99.3 %
Satisfied Customers: 6485
Experience: Family Law Attorney
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