Legal Question in Family Law in California
I was served with the divorce petition in August 2009. I told my spouse not to finalize it until July 2010 when I would be eligible for Medicare (he was covering my medical insurance). In Nov. 2010, he filed for default because I didn't respond. I didn't appear for the Default hearing because i didn't receive the notice. The default judgment was issued on 31 January 2011. I signed the Notice & Acknowledgement Of Receipt of the divorce Petition. I know the server and that was not his signature on that form. Can I appeal the judgment because the server's signature on the Notice & Acknowledgement Of Receipt was fraudelent?
2 Answers from Attorneys
You are really mixed up. You were either served, or you were not served. Service by Notice & Acknowledgement of Receipt would have your signature on it, not a process servers. That's because the party served is the one that acknowledges receipt, not some stranger.
The big question is whether you were served with the summons and petition for dissolution, or not?
I guess Mr. Roach doesn't do much litigation. Of course the Notice and Acknowledgement of Receipt has a server's signature on it: the person who mailed it with the summons and petition. However, as I said moments ago in response to your follow-up to this question, once you sign and return the Notice and Acknowledgment of Receipt, you are served and any defect in the service of the Notice is waived. So forget about any appeal (you can't appeal a default anyway). What you need to do is hire an attorney to try to get the default and default judgment set aside right away. The longer you wait, the more likely the judge will find you intended to allow the default, rather than that it was entered due to inadvertence and excuseable neglect (which is the standard for getting it set aside), and you have a six-months absolute deadline that is coming up.