Is our divorce legal if I never signed papers?

Question:

A divorce judgment was entered against me though I never signed any papers nor have I seen a divorce decree, but I was served with divorce papers. She was awarded everything, including custody of our children. I want to know if our divorce is legal just because I was served?

Also, she has since remarried to a fellow drug addict and the living environment is no place to raise children. What rights do I have to get custody of my children?

Answer:

I do not practice law in Oregon, so therefore I cannot inform you as to the specific laws of Oregon.

It sounds as though your ex wife received a “default judgment” in your divorce. This normally happens when the Petitioner (the person who filed the divorce) serves the Respondent (the other spouse) with a divorce petition, and the Respondent does not file an “Answer” within the time period set by the state.

Each state sets different time periods, but generally, if a party does not file an Answer in their divorce case within at least 30 days of being served with a Petition, they are deemed to have not made an appearance, and the Petitioner can ask the judge to enter a default divorce based on their request.

In order to set aside a final decree, most states outline the specific amount of time you have to file a motion to set aside (such as six months) as well as the  bases for moving to set aside the divorce (such as not having been able to enter an Answer or attend the final hearing because of mistake, fraud, duress, etc.)

Because you mention that your wife was remarried last summer, it is likely that the time you had to move to set aside the divorce has expired. However, I would still consult with an attorney licensed in Oregon to see if you are still within the time period to set aside the decree.

Although you may not be able to set aside your divorce, you may still have grounds to file a petition or motions to have the child custody changed in your case. In most states, the issues of child custody and child support are never really final, and parties can always petition the court for a modification of the child issues if there has  been a change in circumstances, or if the children are in danger.

In Texas, where I practice, the courts are charged with making decisions which are in the best interest of the children, and they would always hear a Motion to Modify child custody if a party alleged abuse, neglect, or dangerous behavior by a parent.

From the facts you describe, it sounds as though you have a good-faith basis for asking for a change in custody. It is advisable to consult with an attorney licensed in Oregon so that you can explore your options.

 

Rachel A. Brucks is a Staff Attorney in the Fort Worth, Texas office of Cordell & Cordell where she practices domestic relations exclusively. Ms. Brucks is licensed in the state of Texas. Ms. Brucks received her Bachelors degrees in English and Political Science from the University of Texas at Arlington. She received her Masters in Literature and Gender Studies from Texas State University, San Marcos; and received her Juris Doctor from Southern Methodists University, Dallas.