Can My Ex Appeal A Default Divorce Judgment If She Missed The Court Hearing?
|Wednesday, 18 July 2012 00:00|
My ex-wife has asked to set aside our final court-ordered divorce decree because she claims the paperwork she was served with listed the incorrect time for our hearing.
Since she didn't attend the hearing I was awarded full custody, most of the property, and child support.
With it being past the 30 days to appeal the divorce, can she really appeal the decision? She defaulted by not showing up on time and just wants the decree to be re-done because she was not happy with the orders.
I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on Indiana divorce laws where I am licensed to practice.
Your former spouse will have the obligation of proving that she did not receive notice of the hearing time or there was some other reason for her failure to attend the hearing and, in addition, that the court's order is not equitable and should be set aside.
This is a tough burden to meet, especially if you have documentation showing that she was correctly served and that her documents stated the correct time. Unless she can prove that the documents provided to her showed the incorrect time or she had another reason for her failure to appear or contact the Court, then she will have difficulty meeting this standard.
Read Related:Can I Appeal My Divorce Order?
Since your former spouse does not argue that she was not aware of the hearing date, only the hearing time, the court may find that her Motion is not timely. In the event that the court believes that the Motion was timely made under the rules of procedure, then the filing may be made in a reasonable amount of time following the order or her discovery of the error.
In the event that the court does determine that the order should be set aside, the court will re-divide the marital property and re-determine issues such as child custody, child support, and parenting time.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with a divorce lawyer in your jurisdiction.