What is a Default Judgment in Divorce Cases?
The plaintiff spouse decides to move forward with the divorce. He files the complaint, financial statement and writ of summons with the family law court. Sixty days go by, and no answer is received from the defendant spouse. The plaintiff served the divorce papers via a private process server, so there is no dispute as to whether the defendant is in receipt of the complaint. What happens now? Does the plaintiff have to wait in perpetuity for the defendant to file an answer? Can the court take action?
Steps to Obtain a Default Judgment
If no answer was received in more than 20 days, nor has the defendant requested an extension to file an answer, the plaintiff can proceed forward. They will need copies of all pleadings they filed as well as an affidavit from the process server or sheriff’s deputy they used to serve the defendant to prove service was effectuated. They must prepare a Motion for Default outlining the steps they took, how many days it has been since the defendant was served, and requesting default in their case. Once the motion is filed, the court clerk will schedule a final hearing on the merits of the divorce case. Even if the defendant does not attend the hearing, the presiding judge will rule on the matter and typically, all of the plaintiff’s requests for relief are granted. The judge has the power to rule on decisions related to child custody, child support, alimony and property division. Once a motion for clerk’s default has been granted, the defendant has limited time to respond before the judge orders a default judgment.
Overriding a Default Judgment
If the defendant simply made a mistake or thought they filed an answer but did not, they may have a few options. The defendant can ask for the court to set aside the default judgment, but the defendant no longer has the option to simply file an answer to the complaint or an amended answer. For the default judgment to be set aside, the defendant must show three causes for why the default judgment should be overturned. The defendant may argue they couldn’t respond due to excusable neglect, meaning circumstances beyond their control prevented them from filing an answer. If the defendant was travelling out of the country for work, was not currently living at the location papers were served, or if the defendant was incarcerated at the time of service, he could argue that service was not proper and that he should be “excused” for not answering in a timely manner.
The defendant must argue that they have a meritorious defense, meaning there are significant issues to be settled in the divorce and custody case, perhaps pertaining to alimony determination, an incorrect child support calculation, or a property dispute. The defendant must argue that they could prevail on one of these contested manners, and not allowing the case to proceed would be unjust. Finally, the defendant must make a showing to the court that they acted in due diligence to set aside the default. Responding the next day would meet this requirement. Responding two months later is unlikely to change the outcome of a default judgment.
Call Bubley & Bubley, P.A. Today
Once the plaintiff has waited twenty days with no response, they can exercise the option to obtain a default judgment. While it may seem unfair to the defendant, family law cases concern the parties’ entire lives, the lives of their children, their property and assets. Because the defendant has failed to answer or request an extension, and the plaintiff has made a good faith attempt to allow the case to proceed in a normal fashion, the court can act unilaterally to order a default judgment. It would be unfair and unjust not to set a deadline for which defendants must respond, nor would it be fair to force a plaintiff to wait indefinitely for an answer in a divorce and custody case. If you have questions about filing procedures for a divorce and custody case, or you need help filing a Motion for Default, contact our Tampa family attorneys at Bubley & Bubley, P.A. With more than three decades of experiencing helping clients in Pinellas and Hillsborough Counties, we will fight for you. Call today to schedule a consultation.