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My brother is going through a divorce & he did not have a lawyer (ex did).
He just found out he did not file within 30 days? And now has a default divorce. He was not agreeing to many things in the divorce, including child support, alimony, custody.
My question is... Is there anything he can do? His ex knew they were divorced for some time now & JUST recently told him. :mad:
OK,
The divorce with alimony is one legal issue.
The child custody agreement including support and custody is another
And normally courts view ignorance of the law as no defense, he should have hired an attorney. Divorce and visitation of the children are that important.
Now he will have to refile to have the judgement admended. But again that is not uncommom, my ex took me back to court at least once a year, sometimes twice for 15 years.
I don't think it works quite that way. When it comes to alimony, custody and support provisions, both parties have to agree. Even if he didn't show up and contest the provisions, the divorce isn't final until he signs the papers.
Tell your brother to RUN, not walk to a lawyer's office and hire someone to help him. I'm not sure he is being told the truth and he needs someone to represent him who can get at the truth.
Thank you both, he is in the process of talking to a lawyer. But one major point I forgot to add is that he did sign stating the RECEIVED the papers, that is it & had a lawyer look over them. My guess is that is when the 30 day time line starts, but the lawyer made no point of telling him the 30 day rule.Quote:
Originally Posted by Dharmagirl
Yes I agree this does not sound right to me, that you could do that.
If he signed for receipt of the papers, that document should have specified the 30 day period. And he should have a copy of it. If he was not given a copy or it does not specify the 30 day period, then he should be able to have the ruling overturned.
It sounds highly irregular that a judge would grant a default divorce after only 30 days. Usually it would take many months or years of trying to contact the other spouse with no luck before granting a default divorce. Why did your brother not respond to the motion when he was served? It sounds like there's little he can do at this point regarding the divorce itself. He may be able to contest some of its provisions (alimony, child support, etc.) if he can demonstrate that he wasn't given ample opportunity to be heard before the motion was granted. For example, if he was never served with the divorce papers (which would obviously explain his failure to respond), he should be able to appeal. He should get a lawyer at this point before proceeding any further.
If I understand this correctly, your brother received the papers, signed an acknowledgement of receiving them then turned them over to an attorney. If this is the case then it sounds like the attorney is guilty of malpractice if (s)he took no further action regarding the divorce proceedings. The judge no doubt regarded your brother's signature, coupled with his failure to appear, as an indicator that he wasn't contesting any provisions of the proposed divorce so naturally (s)he just granted it and that was that. Your brother should talk with a new attorney to see how much, if any, of the damage can be undone and look into proceedings against the first attorney. Having inadequate representation in a criminal proceeding can make a big difference where appeals are concerned but I'm not at all sure when it comes to civil matters.Quote:
Originally Posted by Dharmagirl
I agree with S Cianci... Your brother had poor representation... get a new lawyer... but/however to make your case more solid... give the other attorney an opportunity to correct him/her self... if it is not to your satisfaction... then file a complaint with the American Bar Association... bad lawyers do exist... a divorce is not final until both parties had signed the required documents... and if he had signed the decree he can ask for the options to add an amendment to the decree..
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