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What You Need to Know When You Are Served Divorce Papers

Updated: Dec 10, 2023


 

You may have experienced a whirlwind of emotions when you were served divorce papers from your spouse: shock, sadness, anger, embarrassment, and more. Don't let your emotions paralyze you during this important time. When you are served divorce papers, you have a certain amount of time to file a response with the court; otherwise, your spouse could get everything they asked for in their petition papers.


If your spouse filed a divorce petition against you, your spouse is the “petitioner” in the case and you are the “respondent.” These titles allow the court to identify the parties. Who files first is mostly insignificant to the outcome of the case. There are a few important things to keep in mind as a respondent.


You Must Respond Within 30 Days From When You Were Legally Served


This is by far the most important thing to remember as a respondent in a divorce case: you must respond within 30 days from when you were legally served. How you were legally served could have been accomplished in various ways. Once you are legally served, the clock starts ticking. You have 30 days to “make an appearance” in the case which translates to filing a written answer (also known as a response) with the court clerk or administrator within 30 days along with paying the filing fee ($301 as of the time of this article). If you do not timely respond, the other spouse could “win” automatically by filing default and judgment forms which grants them everything they requested in their petition without your participation. As you can see, this can have an enormous impact on your divorce if the other spouse asked for specific relief in the areas of custody, parenting time, and property division without you having a say in it.


Here is actual language from a summons, which is a required document that accompanies the divorce petition and lays out information regarding the court action taken against you:


NOTICE TO DEFENDANT:

READ THESE PAPERS CAREFULLY!

You must “appear” in this case or the other side will win automatically. To “appear” you must file with the court a legal document called a “motion” or “answer.” The “motion” or “answer” must be given to the court clerk or administrator within 30 days along with the required filing fee. It must be in proper form and have proof of service on the plaintiff’s attorney or, if the plaintiff does not have an attorney, proof of service on the plaintiff.


Is There a Way to Undo a Default Judgment Against Me?


There may have been numerous reasons why you missed the deadline to file a response in your divorce case. Best advice is to not have one and file on time, because it can be difficult to win a motion to “set aside” which is the equivalent of the judge throwing out the judgment.


The first thing to do when you want to set aside a default judgment against you is to file the motion to set aside immediately. The longer you wait, the less likely the court will grant your motion.


The reasons for why a judgment can be set aside come from the Oregon Rules of Civil Procedure 71B and 71C. Some of the reasons include: “(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 64 F; (c) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party..”


What “surprise” may look like in real life is, for example, when the other spouse in their petition asked for an “equitable” property division but the judgment granted everything to the other spouse. Again the sooner you file the motion to set aside the better, as you cannot really claim you were “surprised” by the judgment or there was a “mistake” or “fraud” when you file months after the judgment becomes enforceable. In fact, for reasons (a) through (c) above, the motion must be filed within one year after the entry of the judgment.


"Don't Get Mad, Get Even"


When filing a response, there are four parts: 1.) what you disagreed with in your spouse's petition; 2.) what you agreed with in your spouse's petition; 3.) historical background information about the family; and 4.) your counterclaims for relief; what you want the court to grant you.


The first two parts help narrow the issues by letting everyone know what is and isn't going to be an issue moving forward. The third part paints a picture for the court about the family and also satisfies statutory requirements such as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Then the fourth part is you letting the other spouse and court know what you'd like the court to grant you. If you don't ask, you don't get.


Responding to a divorce can be complicated and have negative consequences if not filed correctly. It’s important you talk with an attorney to help guide you through the process and explain the advantages and disadvantages of making certain requests and taking certain actions.


Discuss your case with an Oregon attorney today. Contact us at Navigate Legal Services today by calling (503) 300-1990.

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