If your divorce is dismissed in California, that means you must refile, unless the dismissal was caused by your or your attorney's mistake, inadvertence, surprise or excusable neglect. If your divorce was dismissed because of one of these four reasons, you may have the option to reopen your case rather than incurring potentially hundreds of dollars to file a new petition, pay a new filing fee, re-serve your spouse and prepare your documents for a second time.
California Code of Civil Procedure 473(b) states that the court may allow a party to reopen her case if the case was dismissed because of the party's or her attorney's “mistake, inadvertence, surprise or excusable neglect.” In order to reopen your divorce, you must first file a motion asking the court to reopen it. You are also required to file a declaration with your motion detailing the mistake you or your attorney made that caused the court to dismiss your divorce in the first place.
Mistakes and Neglect
Many mistakes can be made while a divorce is pending. You or your attorney could have failed to file a crucial document in the case. You could have failed to show up at a hearing at court because you were not given notice of it. You could have been sick in the hospital and unable to attend your trial. There are countless reasons why your case could have been dismissed, but so long as the court finds that your reason falls within the realm of “mistake, inadvertence, surprise or excusable neglect,” you may be able to reopen your case without incurring the costs of refiling a new divorce.
There are two crucial time limitations of which you should be aware. First, you have only six months to file your motion after the date of the dismissal. Second, if you learned of the dismissal by being personally served with a notice of the dismissal, and the court made orders regarding your property, then you have only 90 days to file your motion. If you do not comply with these time limitations, the court will not reopen your case and you will have to start over.
While Section 473 is a great tool for parties and attorneys who find themselves in a bad situation, it is not foolproof. If your case was dismissed after you failed to show up to hearing after hearing, were warned by the court to attend trial, or just did not participate in the process in general, you likely will have to refile your case, pay a new filing fee, and start all over again.
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