How to Change an Uncontested Divorce to a Contested Divorce in California
In an uncontested divorce the spouse who sues for divorce, called the petitioner, and the spouse who is sued, called the respondent, agree on the terms contained in a marital settlement agreement. A divorce may be uncontested even if one spouse responds to the other's petition for divorce as long as the spouses agree on the settlement. A default divorce is by definition uncontested. In order to contest a California divorce, the respondent must either have filed a timely response to the petition for divorce or ask the court to vacate the entry of default or default judgment.
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Instructions
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File a written response to a "Petition for Dissolution of Marriage" within 30 days of the date you were served with the petition. Filing a response means you want to defend your interests in the divorce. If you do not respond, a default will be taken against you, and you surrender your right to participate in the case.
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Hire an attorney if you if you have already defaulted on your right to contest your divorce. An attorney may be able to vacate your default on certain technical grounds.
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Instruct your attorney to file a motion to vacate the entry of default or default judgment under California Code of Civil Procedure Section 473(b) based on your attorney's mistake, inadvertence, surprise or neglect. Your attorney must file a copy of your answer with the motion and also include an affidavit of fault. He has six months after the default to file this motion, and relief is mandatory if the court determines that the entry of default or default judgment was caused by the attorney's mistake, inadvertence, surprise or neglect.
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Instruct your attorney to file a motion to vacate the default or default judgment under California Code of Civil Procedure Section 473.5 on grounds that you were not properly notified of the petition for divorce in time to defend yourself. In most cases, your attorney will argue that you were not properly served. In general, you also have up to six months to seek to vacate the judgment under this law.
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Inform your spouse in writing that you are no longer willing to allow any marital-settlement agreement you may have already signed to be incorporated into any pending divorce settlement. Instruct your lawyer to defend your interests in any settlement agreement proposed by your spouse.
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References
- LawQA; If You Are Served With Divorce Papers Can You Simply Ignore Them?; Donald Conviser; January 2011
- Rambush v. Rambush [267 Cal. App. 2d 734]
- Total Divorce: California Divorce Laws
- Dishon & Block: Contested vs. Uncontested Divorce
- Legislative Counsel of California: California Code of Civil Procedure Sections 469-475
- Photo Credit Comstock/Comstock/Getty Images
