In a divorce, a non-responsive spouse is often a good thing. This means that once a divorce is filed and the spouse is served, he/she does not file a response within the 30 day time period. As a result, the petitioner (or the attorney involved in the case) will enter a ‘default’. Once a ‘default’ is entered and a judgment filed, the respondent is not considered to be ‘in the case’
A Default may be filed when there are no issues:
A ‘default’ is a good thing when the parties have a short marriage and there are no issues like children or property to resolve. In effect, a default allows the divorce to proceed through the court without the need for a court appearance. This type of divorce is usually completed within the 6 month & 1 day time period (from the date of service).
When a Default with issues is filed:
However, when there are issues such as children or property and the spouse does not file a response, then a ‘default’ hearing will be needed. In this case, the spouse will not be present (because he/she did not respond) so the judge will only hear testimony from the petitioner. This can be advantageous due to the fact that respondent’s views would not be heard. In all cases, the judge will make a ruling with regard to the issues and the divorce will be finalized.
When the spouse wishes to respond:
It should be noted that the respondent can enter a ‘motion to set aside’ the default or judgment within 6 months of the entering of these documents and then respond. The respondent will state a reason for the failure to respond timely such as excusable neglect, mistake, improper service and others. When the motion is filed, a response is also filed. The divorce is now ‘contested’. The parties may agree on their issues by filing a ‘stipulated’ judgment, a marital settlement agreement or they can request a trial date and argue their case before the judge. Be advised, if fraud was involved, the respondent may file other motions after the 6 month period.
When you wish to file for divorce or if you have been served with divorce papers, it’s best to call Legal Action Workshop for legal advice and to understand your options. Call 1-800-HELP-444 we’re here to help!