Void Judgment in Divorce

[tessoday]

Just the Facts! Married in 1989, ex filed a petition for nullity/dissolution via an attorney Jan 5 1990. I was unaware that this petition was ever filed and did not know he had consulted an attorney. File shows petition with request to confirm property, including real estate, and that a summons was issued. No proof of service in the file and no withdrawal of petition. Jan. 11, 1990 a petition for a summary dissolution was filed. Judgment was entered on this petition on Dec. 18, 1990.

Is the judgment void? Is the original case still open? I would not have discovered the original case but for research I was doing on child support arrears he owes and I put our names in the computer and this popped up. I was curious as to why no judgment showed on computer so I asked the clerk to pull the file and was amazed to find the judgment for dissolution entered on a completely different case.

 

[army judge]

Just the Facts! Married in 1989, ex filed a petition for nullity/dissolution via an attorney Jan 5 1990. I was unaware that this petition was ever filed and did not know he had consulted an attorney. File shows petition with request to confirm property, including real estate, and that a summons was issued. No proof of service in the file and no withdrawal of petition. Jan. 11, 1990 a petition for a summary dissolution was filed. Judgment was entered on this petition on Dec. 18, 1990.

Is the judgment void? Is the original case still open? I would not have discovered the original case but for research I was doing on child support arrears he owes and I put our names in the computer and this popped up. I was curious as to why no judgment showed on computer so I asked the clerk to pull the file and was amazed to find the judgment for dissolution entered on a completely different case.

If there is no divorce, then there can be no back child support.

It appears that the court erred in entering a judgment against you, when it should have been for another party.

It might be wise to secure as much documentation as you can regarding this matter.

I would then read the material I collected.

Upon review, you could have a clearer picture of what happened.

But, for the moment, it would seem that you are still married (unless there is more to the story).

And, if you are still married, there can be no back child support owed or owning.

Last questions, is there a separate child support order in this case?

Is there another divorce action filed at a subsequent date?

If that is the case, the former divorce (should it be valid) could make the latter divorce void (if there is one).

 

[tessoday]

Last questions, is there a separate child support order in this case?

There is. Issued in 2004. I did not know we were divorced until our son (now 19) was three years old. We continued to live together until 2004. Please don't ask me what I was thinking, as I obviously wasn't.

Is there another divorce action filed at a subsequent date?

There are two separate petitions. The first, filed 1/5/90. This was a standard divorce petition listing real property. The file indicates there was a summons issued. I never received a summons and there is no proof of service in the file. There is also no withdrawal or dismissal of this action in the file.

The second petition, filed 1/11/90. This was for a summary dissolution. Rules for a summary dissolution in CA state that there can be no interest in real property on the part of either party. This is the petition for which a judgment was entered on 12/18/90.

The cases were assigned distinct numbers and they were never consolidated.


If that is the case, the former divorce (should it be valid) could make the latter divorce void (if there is one).

Actually, I am wondering just the opposite. Since the first petition was never adjudicated, is it not still an open case? And if the first case is open and the second case is a petition for the same cause, did the judge in the second case have proper jurisdiction to enter a judgment? Since I was never served with a summons, and did not answer the first petition, does that not violate due process and further complicate the jurisdiction question?

I had the court clerk order the files and have copies of the first petition (1/5/90) and the judgment issued in the second petition. I have ordered the file for the second petition and am waiting for a call saying it's available.

I think what happened is after he spoke to his attorney, he did not want to have to list any property on the divorce petition and filed the summary dissolution to get around any equity I may have had. It was fraud, pure and simple, in my opinion. It was pure chance that I ever found out the original petition existed. I just don't really know what to do about it. We accumulated a lot of property in the 15 years we were together and I had let it go for the most part until I found out about this. I have forgiven this guy a lot of things but this one really takes the cake. To think he did that just to screw me out of what probably amounted to about $7500 at the time and then didn't tell me that he had seen an attorney or filed for divorce makes me lose what little compassion I had left for him.

So, what do you think are the chances I can move to void the judgment?

 

[army judge]

Speak with a lawyer locally.
If you have a legal remedy, it'll be too complicated for you to do pro se.
Fraud, maybe?
I've seen that happen a time or two.
Back child support at age 19, doubtful.
People do stupid things to avoid paying $75.
I've never understood it, and I've practiced law for four decades!
You might not be divorced for several reasons, too complicated to describe here.
Fraud and lack of notice are involved.
Seek the advice of local counsel.
The initial consult is usually gratis.
Once you've had that conversation, you can begin to make some important decisions.

 

[tessoday]

Thank you for the advice. I appreciate it more than you know.

Since I have a valid court order for the child support, I don't think collecting that should be too difficult. He was ordered to pay and didn't do it. I offered to settle and informed him by email, registered mail and personally that if he didn't want to pay, he needed to file for a modification. The only reason I waited so long to take him to court is because he threatened me and my son.

I'm just not afraid anymore. My attorney has retired and moved away so I have to find someone else to take up my standard! As far as this divorce thing goes, I think he and his attorney both rolled the dice and didn't think anyone would ever notice the two petitions. I never would have, if I hadn't typed in "name vs. name" in the civil records database and noticed there was no judgment filed. I just go curious and wanted to find out more.

Anyway, I'll try to find an attorney. Any recommendations from anyone out there would be appreciated.