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RBinJax, Lawyer
Category: Family Law
Satisfied Customers: 731
Experience:  I have handled family law cases in Florida for over 20 years.
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I need a Motion to Set Aside a default judgment for child support

Resolved Question:

I need a Motion to Set Aside a default judgment for child support and to set aside the arrears so I can modify the current order.
Submitted: 7 years ago.
Category: Family Law
Expert:  RBinJax replied 7 years ago.

You may be able to find one online or at a local paralegal service. You are going to need to explain why you did not respond within the time allowed, such as you were not served or did not otherwise get notice of the hearing, or were given notice too close in time for the hearing to appear or obtain counsel to appear for you.

As to the Motion to Set Aside the arrearage that has been assigned, if the default is set aside, the arrearage resulting from not appearing at the hearing should be set aside as well. Obviously, the other side is not going to be happy about this result, and is likely to oppose the motions. If there is any way to have back up support as to the grounds for the motion (someone else who was served in your stead forgot to give you the summons and will give an Affidavit to that effect, someone else lives at your old address where the summons was supposedly sent and will swear they never saw it, etc.) that will be a big point in your favor.

Granting the motions is discretionary with the court, but most judges will agree to set the default aside so that the matter may be determined on its merits. This is particularly true in family law, as you can come in with a Motion to Modify the court's earlier Order(s) if the Motion to Set Aside the default is not granted.

If at all possible, I suggest that you obtain a local family law attorney to represent you in this matter, as the attorney will know how to best present the matter to the judge to achieve the best result.

I hope this answers your questions. Please click Accept so that I may be credited for my assistance. Thank you and good luck.

Customer: replied 7 years ago.
If I understand you correctly, I should file a motion to set aside default judgement and memorandum of points and authorities and this will set aside the arrears as well? Do you have a link where I can find these motions online or at best the statutes governing this action so I can include it in my motion?
Expert:  RBinJax replied 7 years ago.

You should file the Motion to Set Aside Default, setting forth the reasons it should be set aside. Including citations to authority is not necessary at this stage, but certainly would not hurt. Based on your post, it is my understanding that the arrearage arose from the default judgment that was entered, so if that judgment is set aside, there should not be a need for a separate motion to set aside the arrearage. (You can reference this in the Motion to Set Aside Default).

If there is a separate order entered as to the arrearage, it might be better to go ahead and file a Motion to Set Aside Arrearage.

There are a great number of online legal forms services (site protocol prevents recommendations) that carry family law forms, and you also may find a Motion to Set Aside Default under general civil law. Look for forms that are specific for CA. For more specificity you can go to a local paralegal service office, as it will have forms that are in general use in your area.

If you enter "California Code" in your favorite search engine, access to the various Codes and statutes will come up.

I hope this helps.

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