Concord, CA asked in Civil Rights, Constitutional Law, Family Law and Identity Theft for California

Q: What action can I take, if I just found out my husband file for divorce as me without my knowledge meant.

I married in '04, I just was informed he filed for divorce as me being the divorcee against his. I wasn't notified or no signature(s) required from me by the courts. After receiving lNS approval in '05. As we continue to moving forward living our lives happily married til his own infidelity December. He filled as me and had himself served I had no knowledge of it.

1 Lawyer Answer

Donald Arthur Hilland

Answered
  • Criminal Law Lawyer
  • San Fernando, CA
  • Licensed in California

A: So I'm not clear if you are saying that he filed the divorce without knowledge and got a judgment already or just filed the divorce. When a divorce is filed, the papers must be personally served by an independent person, a non party to the divorce, and cannot be served by mail or Fed Ex, etc. So if he filed the divorce and you were not served, you need to file a motion right away to let the court know you were not served. Go to the courthouse, or look online at some courts, and see what the proof of service says. The judge would not grant a judgment or default judgment without a proof of service. See who signed it, under penalty of perjury, and that will be the person, besides your "husband" of course, who needs to come to court and testify when the motion is heard.

The kind of motion will depend on how far the divorce went. But if any decisions were made at all, then you need to file the motion to set them aside on the basis of actual fraud and perjury. If a judgment was already signed, then you need to file a motion to set aside the judgment on the basis of actual fraud and perjury. The California Family Code talks about fraud in many places, but the one you want if there is already a judgment is Section 2122. And the that is the one that talks about setting aside the judgment on the basis of fraud.

That California Family Code states that a motion under either subdivision (a) or (b) of section 2122 must be filed within one year after the date on which the complaining party either did discover, or should have discovered, the fraud or perjury. Note that a California Court of Appeal has stated that the Family Code § 2122(a) and (b) one-year periods do not begin to run on the date that he or she began to suspect the fraud or perjury, but only begins to run on the date that he or she discovered the facts constituting the fraud or perjury. Family Code § 2122 states in pertinent part that, “The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following: So the one year time does not begin until you know about it. But since you know now, you must file it ASAP. This is really something a lawyer should handle. I would charge about $3,000 for this. If you do not have money to pay a lawyer, then some of the courts have help centers. it is a lot of work, though, and I am not sure they can do it.

If you have to do it yourself, like I said find out who signed the proof of service. Subpoena them to come to court. Find out where you were and what you were doing when they claim they served you so you can fight it. Then you need to file of course a bunch of famiily law forms and a Declaration of [Your Name] to tell the court what you think happened and why the court needs to fix it. You need these forms - Response to Petition, FL120, and other forms if you have children. Then you need to file the request for order, FL300 and attach forms that it indicates on pages 1 and 2. The basis for the motion would be what it says in Family Code 2122 - Actual fraud or perjury or both. Here is what that means from the code.

(a) Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud.

(b) Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury.”

Good luck to you!

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