Under California law, once a party is served with the summons and petition for dissolution, they have 30 days to file a formal response with the Court. After this 30 days is expired, the petitioner has the option of filing for a default judgment granting them everything they asked for in their petition, including the dissolution of the marriage once the six month statutory cooling off period is completed. However, the respondent can come back within six months, under Code of Civil Procedure section 473, and get the default judgment set aside as if it never existed. Would such a default judgment also set aside the actual dissolution of the marriage, or do parties always remain divorced once they are divorced by the family court?

The answer to this question may be important. Not surprisingly, the propriety of getting remarried once a default judgment is entered has been raised by family law attorneys in recent weeks.

There does appear to be a definitive answer by our Supreme Court. However, the answer is 114 years old. In Deyoe v. Superior Court of Mendocino County, a 1903 case, the Court held that when setting aside a judgment under Family Code section 473(b), the Court could also reinstate a previously existing marriage, even if the spouse remarried! (See Deyoe v. Superior Court of Mendocino County (1903) 140 Cal. 476, 484-485.)

Just because a case is old, doesn’t mean it is not reliable law. Many forget that one of the hallmarks of California community property law, Pereira v. Pereira, is from 1909. And it doesn’t appear that any of the changes in the law in the early 90’s (when California set aside law was substantially revamped) would upset the reasoning in the Deyoe case. It is also important to note that Code of Civil Procedure section 473 hasn’t changed substantially in the last 100+ years.

Aside from this 100+ year old case, there is other more recent support for the notion that the Court can return the parties to the status of married parties when setting aside a judgment. Family Code section 2122 provides that a judgment can be set aside. It doesn’t say a judgment can be set aside “except for the status of the marriage.”

Not a big deal, you might say. But why then does the set aside provision of Family Code section 2405 (relating to summary dissolutions) specifically limit “set aside…regarding all matters…except the status of the marriage.” The fact that the excepting language exists in 2405 and not in 2122 sticks out like a sore thumb.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding your marital status. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

 

 

www.bickfordlaw.com