My ex-wife filed a motion to change child custody / visitation.
I had 20 days to respond. I mailed my response to the jude and to my ex in a timely fashion. She pretends she never received it and has entered a motion for a default judgement in her favor.
I’ve received a notice of default from the court. Do I just write the judge? Anyone know the appropriate protocol for this?
Depends on the jurisdiction. I’d try calling the court clerk’s office and ask “What is the procedure for dealing with a notice of default?”
They can’t give you legal advice, but they can tell you procedures (if they have time and the procedures aren’t too complicated).
You need to act quickly. Check the laws in your state or jurisdiction. Consult a local attorney. Court clerks are generally prohibited from giving legal advice.
Generally speaking, when you respond to a complaint, you have to do so in a form that is legally acceptable… not just mailing a simple letter. You typically need to file a pleading in the proper format and serve the pleading in the propoer manner on all parties. Anything filed and served should be accompanied by a “proof of service” or declarartion under oath saying who served it, when, and how it was served in order to avoid claims of “but I never got it.”
Now, defaults can usually be set aside by filing a motion with the court to set aside the default. The grounds for setting aside a defaule are usually for mistake or excusable neglect. You didn’t know the law, so the court may be sympathetic and set aside your default, but the sooner you act, the better. Courts don’t like people sitting on their asses then whining later on about injustice.
There is a general public policy (in California anyway) to allow cases to be heard on the merits. Default judgments are usually disfavored for this reason.
Get a lawyer and ask about filing a motion to set aside the default as laws in your jurisdiction may vary from the general principles I’ve spelled out here.
I’m in Florida. The language on the summons reads, “If you choose to file a written response yourself, at the same time you file your written response to the court, you must also mail or take a copy of your written response to the party serving the summons at:her address”
I should have sent it certified, doh! Interestingly, I was supposed to have my daughter for July4th. I sent a certified letter stating I would be there to pick her up at 8am. The postman attempted delivery on on July 2nd. To this date she hasn’t picked up the certified letter. I’m hoping this documentation will convince the judge of her intent to avoid receipt of correspondence from me. But I don’t know how much impact that will have.
I don’t understand - did you file your response in court or just mail it to the other party?
(standard disclaimer about legal advice)
June 18 I received a summons with 20 days to reply.
So that gave me until a July 8 postmark.
July 3 I sent via 1st class mail a reply to the Judge and a copy to the petitioner at her address. July 9 the petitioner filed for a default due to my lack of sending a reply. (even though I actually had replied) July 10 the court sent me:
*Notification of Default
A Default has been entered in this case on July 9
Under Rule 1.500 your pleadings have been accepted and are part of the court record. *(I guess this means the postal system worked in delivering the copy I mailed to the judge)
Entry has been made on the progress docket of this notification. So I don’t know if my “pleadings” negate the default by default since the judge received them or if I need to take further action saying my wife is a lying dog that won’t open her mail.
IANAL lawyer, but I believe this is your problem:
the phrase “file your written response to the court”. That does not mean “mail a letter to the judge”.
Note that it says you can mail to the other party. It says nothing that implies you can do a “filing” the same way.
You got it, Boyo Jim.
Filing a pleading with the court (in California and probably elsewhere) does not mean mailing a letter to the judge. It means you have to prepare a “pleading”, which is usually a legal document with specific formatting and content requirements such as a “legal caption”, line numbers, page numbers, etc. The pleading has be be in the court’s hands (i.e., received by the court and file stamped) on or before the requisite filing date, not just postmarked.
Some courts will file pleadings by mail, but, again, this means received by the court, not just postmarked.
“Serving” the pleading usually means dropping it in the mail with a proof of service (supra). The proof of service should be filed with the court along with the pleading to prove to the court that the document was served. However, some documents are only valid if they are personally served. It depends on the type of documents and the situation whether personal, mail, or any other type of service is considered valid service.
Why do you assume that it’s the postmark that counts?
Boyojim might be right. It’s hard to say without looking at all the papers carefully. The most polite thing I can say here is that you’re floundering around and that there’s no way that anyone can give you the advice you need on a message board. Talk to a lawyer in your jurisdiction, pronto.
(standard disclaimer about legal advice)
Also, typically, someone who is NOT a party to the case SERVES all documents and signs the proofs of service.
I, too, think you need a lawyer before your case slips through your fingers. It appears you are on the verge of losing because you don’t know the proper procedure. This is understandable because court procedure is a difficult thing to master. It sucks that you need a friggin law degree just to file a piece of paper, but that’s the way it is. You can have the best case in the world, but if you don’t follow procedure, you’re screwed.