Default Judgments | Jupiter Divorce
A default judgment is similar to a forfeit in sports. If one team is there and ready to play and the other team doesn’t show, the absent team may have to forfeit the win.
In a divorce case, you have a certain time period in which to “show up” — by responding to being served with a Petition for Dissolution of Marriage (divorce papers). If you fail to respond, the person who filed for divorce can ask the court for a default judgment. In other words, they’re asking to proceed without the other person’s participation.
Here’s the process:
Step 1: Serve the Petition
The person filing for divorce is called the Petitioner. The other party is called the Respondent. The petitioner is required to serve the petition for divorce to the respondent.
Proper service is crucial. Improper service can prevent you from getting a default judgment. That’s because a default judgment is awarded when the respondent knows the papers have been filed and has a chance to respond, but fails to do so. If the respondent never properly receives the papers or notice of filing, then they don’t have a fair chance to respond, so the court will not grant a default judgment.
When divorce papers are filed, the court clerk will issue a summons. A copy of the divorce petition and the summons is what needs to be served to the respondent. Typically divorce papers are served by a sheriff’s deputy in the county where the petition is filed, or by a professional process server. If you are unable to locate the respondent, you may initiate a “constructive service of process”. This is where you post a legal notice in a local newspaper. But first, you must file an affidavit (a sworn statement) with the court detailing your efforts to locate and serve the respondent.
Step 2: 20 Days to Respond
Once the papers have been properly served, the respondent has 20 calendar days (that includes weekends and holidays) to file an answer to the petition. During this time, the respondent may also ask for an extension to file a response.
Step 3: Default Judgment
What happens after the 20 days is up? Well, nothing… unless you make it happen. Nothing automatically happens on Day 21. You must now file a Motion for Clerk’s Default.
If the clerk approves the motion and declares the respondent in default, your case will be heard by the court without the respondent’s participation. The court will consider your petition for divorce, including any evidence you provide. If the court finds you have presented enough evidence to support your petition for divorce, it will be granted. That includes your requests for division of property, alimony, child custody, etc.
Can the respondent come back in?
If it is outside the 20 days, can the respondent decide to join the game? That depends.
If the petitioner has not yet filed a Motion for Clerk’s Default and the divorce has not been granted, the respondent may be able to file his or her answer late.
If the clerk has already granted the motion for default, the respondent will need to initiate his or her own motion to have the default judgment set aside. A hearing will be set and the respondent will be required to show:
- excusable neglect – in other words, there’s a good reason for the respondent’s failure to respond to the petition
- respondent has a meritorious (factual) defense; and
- respondent acted with due diligence in moving to set aside the default judgment.