Generally, both spouses want to participate in the divorce because they want to have input in either support issues, custody issues or the division of assets and debts. However, there are instances when only one spouse participates in the divorce. This occurs sometimes because the spouse does not care, does not want the divorce or cannot be found. Although the court would rather have both spouses participate in the proceedings, it will proceed without the other spouse. These are called “default” cases.
When can a default be taken against another spouse?
A default be may taken against another spouse if the responding spouse was served with process and more than 30 days has expired since that spouse was served. In other words, a spouse may default the other spouse if that spouse has not filed a response within 30 days after being served with the divorce papers. For this reason the responding spouse should not risk waiting to file a Response and should do so before 30 days have run. Otherwise, you risk being defaulted. Although defaults can be set aside, it takes additional time and money to do so and set asides are not guaranteed.
If you cannot personally serve your spouse with the divorce papers, does this mean you cannot get divorced?
The answer is no, but the process will take longer. Because service of process is one of the most fundamental principals of law, the court will ensure that the right steps are taken to default the other party that has not been personally served. The petitioning spouse will have to serve by publication which means that notice of the divorce is put in a newspaper.
However, before the court grants service by publication, it will require that you show the diligence you have made to locate and serve the other party and have exhausted attempts to located the Respondent. Once the court is satisfied it will then authorize service by publication. Publication must occur at least once a week for four successive weeks. After the 28th day service is deemed complete and then the 30 day response period begins. After the 30 days, a default can be taken.
Is there anyone that is exempted from being defaulted?
The answer is yes. Active duty military members cannot be defaulted. This protects a military member from their spouse’s waiting for them to deploy, knowing that they would not be able to respond. If a military member is unable to respond or does not want to participate, the court will have to appoint them an attorney under the Civil Service Relief Act. This ensures that the military member’s due process rights are protected and does not get a judgment issued against them without them knowing and/or participating.
How is a default judgment obtained?
Although the court can enter a default judgment after reviewing a declaration by the Petitioner, it generally happens after a default prove-up hearing. This requires the Petitioner to appear in court and prove up his or her case as to how the assets and debts should be divided, how custody should be, and what support should be. The court only has jurisdiction over issues that have been raised in the Petition and the property declaration. If the court is satisfied with the prove-up, it will then issue a default judgment. Once the judgment is entered, the case is done although the Respondent may later modify custody, visitation, child support or spousal support.