A Default Divorce Should not be Granted Where (1) Service is Improper, (2) a Party’s Attorney Fails to Represent Him or Her, or (3) Where a Party’s Attorney Takes Unfair Advantage of the Other Side

The Court of Appeal in Orange County set aside the divorce court’s default judgment based “on a very slight showing” of inequality.

In this Orange County divorce, wife’s divorce lawyer filed for a legal separation.  Wife served husband, who retained his own divorce lawyer.  However, wife’s lawyer amended the petition to seek a divorce rather than legal separation and mailed a copy to the husband.  Wife’s lawyer did not personally serve husband and mailed a request to enter default divorce to husband.  Wife’s divorce lawyer filed the request to enter default, which the divorce court granted, and husband’s divorce lawyer moved to set aside.  Until set aside, the default ordered restraining orders against husband, the sale of the family home, spousal support and child support, and no parenting time with his eight-year-old daughter until the completion of physical and mental abuse counseling.

In support of the motion to set aside, husband testified that he could not contact wife during this process and wife’s divorce lawyer told husband that, “there was nothing [husband] should do in relation to these proceedings.”  Wife’s divorce lawyer admitted that he failed to do anything on husband’s behalf.  In opposition, wife admitted that she did not advise husband of the default or its consequences.  Wife also made no effort to contact husband’s divorce lawyer and did not even know the name of husband’s divorce lawyer.  The divorce court denied the motion to asset aside and husband’s divorce lawyer filed an appeal.

The Court of Appeal in Orange County ruled that a default divorce judgment should be set aside based on only a “slight showing.” The Court of Appeal found the divorce court erred in three separate areas.

First, husband was not properly served with the amended petition.

Second, husband’s divorce failed to represent him. Husband’s divorce lawyer’s actions were so egregious that he was disciplined by the State Bar. The Court of Appeal in Orange County determined that the husband’s divorce lawyer’s wrongdoing should not be transferred to husband, especially where an innocent child’s rights are at stake.

Third, wife’s divorce lawyer took unfair advantage of husband by failing to contact his divorce lawyer or advise husband of the default divorce or its consequences. The Court of Appeal sent the case back to the Orange County divorce court to grant husband’s motion to set aside the default divorce.

In re Marriage of Rhoades (1981) 157 Cal. App. 3d 169