A default judgment in dissolution of marriage cases is a judgment attained when the respondent fails to file a response. The petitioner then can file a request with the court to move forward in the case without the respondent’s involvement.

“It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and opportunity to defend. “California satisfies these due process requirements in default cases through Code of Civil Procedure  (CCP) Section 580. In Re Marriage of  Lippel, (1990) 51 Cal.3d 1160, 1166

CCP Section 580 (a), provides: “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint…” A default judgment that awards relief greater than the amount specifically demanded in the complaint is void as beyond the court’s jurisdiction as to the extent of that excess and can be challenged and set aside at any time. Greenup v Rodman (1986) 42 Cal.3d 822, 826, 829; Lippel at p. 1163

For example, a judgment is void to the extent it orders a respondent in marital dissolution proceedings to pay community debts or other obligations when that relief was not requested in the complaint and the matter is held as a default matter.

A good example would be a trial court ordering attorney fees or credit card debts payable by the respondent when the petitioner did not request such debts to be paid in the complaint.

Some default judgments do not require court hearings. However, if a nullity (annulment) is requested or financial payments are sought, the court will want the petitioner to “prove” up the case. I have a client now that is similarly situated in that she is requesting a nullity due to fraud and certain financial payments to be made. The respondent has had ample time to respond and has failed to do so. As such, my office filed a default judgment and now we have to go to court to prove up the relief requested in the petition (complaint)

What occurs during these hearings? It is set as a short trial and the petitioner is required to be present since the judge has some questions about the default judgment. The other party since they did not respond will not be present and since the judgment is by default, the client is requesting relief (in her case, nullity, property division, attorney fees) without the other party’s agreement or participation in the divorce.

There are no custody or visitation issues in my client’s case but default judgments do address custody (legal and physical) by default. In this case scenario, judges will want to hear the petitioner and her/his reasons for the custody orders sought. Generally, from my experience, custody requested in a default judgment setting is sole legal and no visitation.

The lesson to walk away from this article is that if you are the petitioner and you have been provided with notice for a default judgment hearing –be prepared to answer the judge why you are requesting the relief memorialized in the complaint. If you are the respondent, timely respond to the complaint served in order to prevent a default judgment being entered against you.

Setting aside default judgments are technically and legally driven so it is best to respond in thirty days, unless a continuance was allowed. If you have any questions, feel free to call my office at 310-601-7144 or visit my website at attycastaneda.com

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CategoryLegal Advice