California Divorce Litigation Rules are Strict, Even if You’re in Jail – In re Marriage of Short

Filing a petition for dissolution of marriage in California, just like filing any other type of lawsuit in the Golden State, requires a lot of dotting of “I’s” and crossing of “T’s,” so to speak. In other words, there are a number of rules and regulations that must be closely followed. There are also many time limits and deadlines. In In re Marriage of Short, the state’s Fifth District Court of Appeals explains that courts enforce these procedural rules very strictly, even if you are in jail at the time of the divorce proceedings and not represented by a lawyer.

1390182_barbed_wire.jpgHusband filed a petition seeking to dissolve his marriage with Wife in Superior court in the County of Fresno in June 2010. The matter was later transferred to a court in Stanislaus County after Wife filed her own dissolution petition and request for a change of venue 10 days later. Husband represented himself without an attorney following the venue change. He was later arrested and held in Fresno County Jail in early December 2010 and was sent to a facility in Vacaville after being sentenced to six years in prison.

Husband filed a response to Wife’s dissolution petition while incarcerated. He did not, however, provide a preliminary declaration of disclosure. A party to a divorce proceeding in California is required to file a declaration regarding their financial disclosures, which includes providing a schedule of assets and debts as well as information about income and earning opportunities, on the other party. Despite warnings from the court and Wife’s legal counsel – served on Husband at the Vacaville facility – he did not file the disclosure.

Wife filed a motion to strike Husband’s response and enter a default. Wife’s motion was based on Husband’s failure to comply with the court order to file and serve a preliminary declaration of disclosure. Then Husband filed a motion for a continuance and a declaration in support of his motion for a continuance. Neither Husband’s motion for a continuance nor the declaration in support of that motion is included in the clerk’s transcript. The clerk’s transcript does contain Wife’s opposition to Husband’s motion for a continuance and her declaration in support of her opposition.

The court ultimately denied Husband’s request for a continuance  and extension of time and granted Wife’s motion to strike his response and enter  a default judgment. The judgment denied spousal support to both parties, divided community property and debts, and confirmed certain items at the separate property of Husband or Wife.

The court thereafter denied a motion to set aside the judgment later filed by Husband, ruling that it was not timely.

The Fifth District affirmed the default decision on appeal.

Code of Civil Procedure section 473 requires a person seeking to set aside a judgment to file a motion to file the appropriate motion within six months after the judgment “was taken.” “California courts have held that the six-month period runs from entry of default, not entry of judgment,” the appeals court explained, citing its 2009 decision in Manson, Iver & York v. Black. Here, the trial court filed the default judgment June 14, 2011 and entered it in a minute order during a hearing the next day. Finding that Husband filed his motion to set aside the judgment on March 25, 2012, the Fifth District said it was untimely because it was outside the six-month period set forth under section 473.

This case is good example of just one of the reasons a person involved in a California divorce should seek the advice and counsel of an experienced family lawyer who can guide the person through the process and ensure that all procedural requirements are met. An attorney can also help parties to a divorce avoid these strict filing rules – and side step some of the rancor and hostility often related with divorces – by considering alternatives to litigation, such as mediation and collaborative divorce.

With offices throughout the region, Bay Area divorce lawyer Lorna Jaynes has years of experience providing innovative legal tools to resolve a broad array of family law disputes, including divorce, support and child custody matters, without resorting to traditional litigation.

Related blog posts:

Happy Outcomes in California Mediated Divorce

Best Divorce Strategies – Listen, Seek to understand, Focus on the future, Heal

Support Awards and Earnings Capacity in California Divorce – In re Marriage of Lim

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