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Default Divorce

On some occasions, a party will not respond to a Complaint for Divorce after being properly served with one.  Under these circumstances, the party serving the Complaint for Divorce will have the opportunity to have a default entered against the nonresponsive party.  Once a default is entered, the party filing the complaint will be able to proceed without his or her spouse and seek a Judgment of Divorce from the court.

If you have been properly served with a complaint, you have 35 days to file a response with the court.  In order for service to be proper, you have to be personally served (e.g., by a process server or a sheriff’s officer); receipt of a Complaint for Divorce through the mail will not be considered proper service under most circumstances.  It is extremely important that you seek the advice of counsel upon being served with a complaint so that you can have an attorney explain your rights and guide you to your next step, which would be responding to the complaint.

If you do not file a response within the 35 day response period, you run the risk of having a default entered against you.  The court will eventually force your spouse (the filing party) to proceed on a default basis or else the court will dismiss the filed Complaint for “lack of prosecution.”

If a default is entered against you, it does not mean that the case is over.  The matter will be scheduled for what is commonly referred to as a default hearing.  Prior to the default hearing, the filing party must prepare a document called a Notice of Proposed Final Judgment.  The Notice will include a statement of the value of each asset involved in the marital estate and the amount of each debt sought to be distributed.  The Notice will also include a proposal for distribution of all martial assets and debts, the filing party’s position regarding alimony and child support and a statement as to his/her position as to any other issues the filing party is asking the court to decide.  The party seeking the divorce will have to file the Notice of Proposed Final Judgment with the court and will have to serve you with a copy of it as well.

At the default hearing, the filing party will testify and provide proofs to the court which will support the positions he/she has taken in her Notice of Proposed Final Judgment.  The burden will be on your spouse to convince the court that his/her proposed final judgment is fair.  If the judge determines that it is fair, the court will enter the proposed judgment as a final judgment.  The judge may also modify the proposed judgment so that it appears to be more equitable before entering the judgment.  Even though a default has been entered in the matter, you will be able to appear at the default hearing and participate to the extent that the court permits.

Even if you have defaulted in a divorce litigation, you may hire an attorney at any time.  It is common practice to set aside the default and permit the non-responsive party to file a pleading when the defaulting party retains an attorney.  Due to the lenient nature of the court rules, defaults are typically set aside by the courts upon the application of the attorney representing the party who defaulted.  Therefore, rather than delay the matter and cause extra attorney fees to be incurred, the default is typically set aside voluntarily with the consent of the party who filed the Complaint for Divorce.

It is important to note that a default can still be entered against you even if you have properly responded to the Complaint for Divorce served upon you.  If you have filed a proper response but then refuse to participate in the divorce litigation, the court may dismiss your pleadings and permit your spouse to proceed on a default basis.  After dismissal of your pleadings, the litigation would continue as explained above with the scheduling of a default hearing and the filing of a Notice of Proposed Final Judgment.

If you have had a default entered against you in a divorce litigation, it is extremely important that you consult with an attorney immediately.  If you do not, your spouse may very well convince a court to enter her proposed judgment and you will be powerless to stop same.  Alternatively, if you have served your spouse with a Complaint for Divorce and your spouse has not replied, or if your spouse has not participated in your divorce litigation after filing a responsive pleading, please contact our firm so that we may help you file a default against your spouse so that you may reach an end to your divorce.