What is a default divorce?

Divorce actions involve the issues of dividing property in a fair and equitable manner, child custody and visitation, child support and spousal support. The party beginning the divorce, the Petitioner, files a Petition for Divorce and issues a Summons on the opposing party, the Respondent. When the Respondent fails to plead or otherwise respond to the Petition for Divorce and Summons served upon him or her, the Respondent is in default.

The Petitioner must then request that a default judgment be made. Prior to the Court entering a default judgment, the Petitioner must file an affidavit or state in the Petition that the Respondent either a) is not in the military service of the United States; b) is in the military service; or c) or that the Petitioner does not know if the Respondent is in the military service.

The federal statutes define "military service" as federal service on active duty including the period during which a person in the military service is absent from duty due to sickness, wounds, leave, or other lawful cause. If the Respondent is in the military at the time of default, then federal statutes prohibit the entry of default until after the Court has appointed an attorney to him or her. Additionally, if the party in the military requests a stay, the Court must grant the stay and will be otherwise unable to enter a judgment of default.

Once a default judgment has been entered, a default hearing is held to determine the issues of the divorce after the Respondent has failed to make any sort of appearance in the case. No further notice of the proceedings to the Respondent is necessary in a default divorce; the service of the Petition and the Summons is enough notice that a final judgment may be entered.

However, one exception applies to this rule: if the Respondent has appeared or appeared by representation at any time in the divorce action, the Respondent or Respondent’s counsel must be served with the written request for a default judgment at least seven days before the hearing. Typically, the parties are divorced after the Court grants an Order from the default hearing.

If you are served with a Petition for Divorce and a Summons, be sure to consult with an attorney as quickly as possible to avoid having a default judgment entered against you.

 

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