late filing a response to a separation case

[vhdp]

What is the name of your state (only U.S. law)? CALIFORNIA.

I was travelling and come back home, and found that my wife has filed for legal separation. The paper was served to my father's address which was also my temporary address while I was separated from my wife. Since I was not present to sign for the paper, my father signed for it instead of me.

The paper was filed with the California court on Nov 9, 2008, served to my father (me) on Nov 16, 2008. the court date was set on May 15, 2009.

My father is 83 years old, senile, in poor health. He just came back from the several-day stay at the hospital for the chemotherapy to cure his cancer. On the 2nd day home from the hospital, still very tired, weak, exhausted, confused..... he signed for the court paper, threw it in the pile of mail belonging to me, waiting for me to come back and read it and totally forget about this court thing.

I came back from the trip and found out that I had 30 days to file a response to this separation paper from my wife with the court.

I was already late and outside of the 30-day response window.

My questions:

Can I still go ahead and file a response to this separation paper with the court, with the explanation that I was travelling and my father did not let me know of this paper due to his senility, old age, tired, confused, exhausted from the hospitol?

Is this a good reason for being late file a response? Will I suffer any loss of rights in this case?

Thanks in advance for any help in this issue.

 

[CourtClerk]

What is the name of your state (only U.S. law)? CALIFORNIA.

I was travelling and come back home, and found that my wife has filed for legal separation. The paper was served to my father's address which was also my temporary address while I was separated from my wife. Since I was not present to sign for the paper, my father signed for it instead of me.

The paper was filed with the California court on Nov 9, 2008, served to my father (me) on Nov 16, 2008. the court date was set on May 15, 2009.

My father is 83 years old, senile, in poor health. He just came back from the several-day stay at the hospital for the chemotherapy to cure his cancer. On the 2nd day home from the hospital, still very tired, weak, exhausted, confused..... he signed for the court paper, threw it in the pile of mail belonging to me, waiting for me to come back and read it and totally forget about this court thing.

I came back from the trip and found out that I had 30 days to file a response to this separation paper from my wife with the court.

I was already late and outside of the 30-day response window.

My questions:

Can I still go ahead and file a response to this separation paper with the court, with the explanation that I was travelling and my father did not let me know of this paper due to his senility, old age, tired, confused, exhausted from the hospitol?

Is this a good reason for being late file a response? Will I suffer any loss of rights in this case?

Thanks in advance for any help in this issue.

As long as default hasn't been entered, you may file a response. The civil code does not say that you can be late filing a response if you were travelling, not home, had a cold that day or whatever else you can think of. It says a response must be filed in 30 days.

If default has been entered, you may do a motion to set aside default and whether or not the judge will go for it is completely up to the bench officer.

 

[vhdp]

Thanks for the response to my questions.

I do not quite understand "As long as default hasn't been entered, you may file a response.", please explain to me a little bit further.

1. In order for the judge to declare "default" to my wife request due to my non-response, my wife's lawyer has to file a form like "Request to Enter Default" and then on the court date the judge will approve this request and declare "default". Is this correct?

2. So, if I have not received any such form"Request to Enter Default" from any process server, it means that my wife lawyer's has not filed it. Is this a correct assumption?

3. Even if I delay responding to this case, and my wife's lawyer file "Request to Enter Default", the judge would not response to this until the court date May 15, 2009, I still can respond to this case before the court date of May 15, 2009 where both of us will be in front of the judge. Is this the correct understanding of this process?

4. On the front page of the package, there is a form named "Attachment FM-1050" and it mentions of the case has been assigned to a judge and a wording " your case has been scheduled for a case management conference on May 15, 2009...." and I could not find any date earlier than this. Does this mean this is the court date? And I can have up to this court date to file a response with a good reason?

Thank you again for your help or any input in this case.

 

[CourtClerk]

1. In order for the judge to declare "default" to my wife request due to my non-response, my wife's lawyer has to file a form like "Request to Enter Default" and then on the court date the judge will approve this request and declare "default". Is this correct?

Incorrect. Default is entered in the clerk's office. The judge never sees it.

2. So, if I have not received any such form"Request to Enter Default" from any process server, it means that my wife lawyer's has not filed it. Is this a correct assumption?

You receive notice of default after it has been entered, via the US mail. There is no process server involved. The lawyer will file a request to enter default, the clerk will enter default if there is no response and send a copy to each party.

3. Even if I delay responding to this case, and my wife's lawyer file "Request to Enter Default", the judge would not response to this until the court date May 15, 2009, I still can respond to this case before the court date of May 15, 2009 where both of us will be in front of the judge. Is this the correct understanding of this process?

That is not a correct understanding of the process. See above.

4. On the front page of the package, there is a form named "Attachment FM-1050" and it mentions of the case has been assigned to a judge and a wording " your case has been scheduled for a case management conference on May 15, 2009...." and I could not find any date earlier than this. Does this mean this is the court date? And I can have up to this court date to file a response with a good reason?

You don't have a good reason as I indicated in my initial post. Second, the date for the case management conference is May 15. That is all that is going to occur that day, if default hasn't been entered by that time. If it has, then there is no need to go to the CMC. In all probability, the divorce will be final by May 15 and you will have never appeared in court.

 

[vhdp]

Thanks for more answers to my questions.

Assuming the worst case scenario that the default has been entered, on the paper that was served to me (my father signed for it while I was away), I saw it only mentioned about child custody, visitation rights etc... but regarding property rights, it says "property rights to be determined" and no detail whatsoever about the property rights were mentioned except that it says "the full nature and extent of community property and liability are not known at this time"

How does the default affect my separate properties. Does it means that I lose all my separate properties and all properties will be divided equally 50/50 and there will be no calculation of what is my separate property and community property.

Thanks again for your helps and response.

 

[LdiJ]

Thanks for more answers to my questions.

Assuming the worst case scenario that the default has been entered, on the paper that was served to me (my father signed for it while I was away), I saw it only mentioned about child custody, visitation rights etc... but regarding property rights, it says "property rights to be determined" and no detail whatsoever about the property rights were mentioned except that it says "the full nature and extent of community property and liability are not known at this time"

How does the default affect my separate properties. Does it means that I lose all my separate properties and all properties will be divided equally 50/50 and there will be no calculation of what is my separate property and community property.

Thanks again for your helps and response.

It says, "property rights to be determined". That means at this point nothing is going on about property rights. However, if you don't get a move on and get something going, you could end up with problems.

You started this thread on 12/21, which gave you several business days to get something going, and you have not yet. Stop posting here and get your legal ducks in order.

 

[CourtClerk]

Thanks for more answers to my questions.

Assuming the worst case scenario that the default has been entered, on the paper that was served to me (my father signed for it while I was away),

There is nothing to sign for....however, I did notice you've probably still done nothing but post on this board. Therefore, after this, I'm going to stop answering because I don't like wasting my time.

I saw it only mentioned about child custody, visitation rights etc... but regarding property rights, it says "property rights to be determined" and no detail whatsoever about the property rights were mentioned except that it says "the full nature and extent of community property and liability are not known at this time"

How does the default affect my separate properties. Does it means that I lose all my separate properties and all properties will be divided equally 50/50 and there will be no calculation of what is my separate property and community property.

Thanks again for your helps and response.

In the judgment she'll get what she asks for. You'll be awarded what's in HER judgment after her prove-up hearing.... which you won't be at because you defaulted.

 

[vhdp]

Thanks for all the answers to my questions.

It may appear that I have not done anything to respond to the court, but in fact, I have asked a lawyer friend of mine to take care of this for me, then I have to be back on the road again, but I have got unsatisfactory or unclear responses or explanations. At this point, I got more responses and understand more about this court process by learning from reading on this forum. Please do not get disappointed. All your helps and answer are helping someone like me. It is not going to waste.

Again, thanks for all your time.

 

[jjmomma]

when this happened to my brother, he contacted his lawyer and they filed an extention, and YES there WAS something to sign for. Dont get down from reading this junk on here, its people who think they know what they are talking about when every case and situation is different. I am glad you contacted an attorney, they can help you better. Good luck!

 

[Ohiogal]

when this happened to my brother, he contacted his lawyer and they filed an extention, and YES there WAS something to sign for. Dont get down from reading this junk on here, its people who think they know what they are talking about when every case and situation is different. I am glad you contacted an attorney, they can help you better. Good luck!

In what state was your brother? Oh and the word is "extension".

 

[Zigner]

when this happened to my brother, he contacted his lawyer and they filed an extention, and YES there WAS something to sign for. Dont get down from reading this junk on here, its people who think they know what they are talking about when every case and situation is different. I am glad you contacted an attorney, they can help you better. Good luck!

Incredible hypocrisy. You state that "every case and situation is different", yet you STARTED your post with "when this happened to my brother"

Who cares about your brother? Every case and situation is different!