If you missed the deadline to file your response to the petition (30 days after the date of personal service), you will first need to confirm whether your spouse has filed a request to enter default. A default effectively takes away your leverage and your voice. Your spouse is free to proceed without you.
Since most people have at least some assets, money, personal property, gifts, vehicles, debts, and exposure to pay financial support — or the right to receive it — it is usually recommended that you file a response so you can protect your interests.
Most courts allow you to look up what documents have been filed in your case online. If they do not allow online access, you must call the family law clerk’s office for the county where the petition was filed.
Whether you look it up yourself or call the clerk’s office, you will need your case number (which is on the petition you were served), so keep this handy.
Request to enter default not filed
If the request to enter default has not been filed, you have a couple of options.
If you and your spouse are communicating amicably, you could simply ask for an extension to file. Get this agreement in writing, preferably with the length of the agreed-upon extension. File your response as soon as possible and before the extension expires.
If you and your spouse are not communicating, you will need to file your response immediately. After 30 days without an agreed-upon extension, your spouse could file the request for entry of default any day. This would bar you from filing a response without a stipulation or the court’s permission.
Request to enter default has been filed
If the request to enter default has been filed, you could submit a request to your spouse (or their attorney) that they sign the stipulation to set aside the default and allow you to file your response.
If they agree to a stipulation, you will need to file this with the court with a filing fee. You will then need to file your response within the new deadline.
You will also need to file a motion requesting the court’s permission, if necessary. You must explain to the court why you did not timely file your response, addressing whether it was simply neglect, the service was untimely, or the service was improper. The motion will most likely require you to pay your first appearance fee. You will need the original and at least two copies when you file: one copy for you and one copy to be served.
When you file the motion, the clerk will give you a court date. This will need to be set out far enough to allow adequate time to have your motion served. You will need a copy of the motion served on your spouse or their attorney. The motion can be served by mail (which requires 16 court days plus 5 calendar days for mailing) or personal service (16 court days). Have your response ready by the court date. That way, if the judge grants your motion, you can immediately file the response.
Your remaining option if the request to enter default was filed is to let the default stand and work with your spouse to come to a full agreement and enter a judgment as uncontested. This is a potentially risky option, but it is an option. You may still have to pay your first appearance fee if you sign and file a stipulated judgment or marital settlement agreement. The risk in this avenue is that if the communication between you and your spouse breaks down and becomes a contested situation, they have already entered your default and can proceed to judgment without your input. Your options to set aside the default may no longer be viable. You potentially may be able to file a motion to set aside the default, but the longer you wait, the harder it may be to convince the judge to grant you relief.
Your best and safest option is to file a response, if possible. This ensures your rights remain intact and requires no additional steps or time. If your spouse has already filed a default, consider filing a request to set aside the default or simply asking your spouse if they will agree to set aside the default. You might get a “yes” since most people don’t want to have to take the time to go to court and battle it out.
Contact us if you have further questions. You may also want to try one of our flat-rate legal services.