A default judgment in a divorce occurs when the petitioner (the spouse asking for the divorce) files the divorce complaint and the other spouse does not respond or appear in court. By default, the judge then gives the petitioner what he or she asked for in the divorce papers. Some divorcing couples pursue a default judgment on purpose since the process can be simple with some pros. However, the potential downsides are serious, particularly for the defendant. A default judgment is nothing to jump into without thinking through the possible consequences.
What Does Default Judgment in a Divorce Mean?
Before filing for divorce, some couples decide to go the default route. They plan for the judge to decide in favor of the plaintiff after the defendant does not respond and does not appear in court. This method can be risky, especially for the defendant.
If you’re the defendant, you might get a default judgment in a divorce filed against you if you do not respond to court filings or miss the divorce hearing. You do have remedies to protect your rights and vacate the judgment, especially if you act quickly and missed the hearing for legitimate reasons.
What Is a Default Divorce?
At its most basic, a default divorce means the defendant (also known as the respondent) does not take any action and does not appear in court, thus prompting the judge to decide in favor of the plaintiff.
The pros of a default divorce when both parties consent and plan it that way include privacy and the ability to resolve matters outside the courtroom. A default divorce is also cheaper than a contested divorce. However, the plaintiff and respondent can get these benefits with a regular uncontested divorce, and it does not require the same amount of risk for the respondent as a default divorce does.
Default divorces are inherently dangerous for respondents, even if the default is strategic for both parties. This is because an unethical plaintiff or lawyer could trick the defendant by misrepresenting matters. A couple might work out a divorce agreement, and the defendant reviews the pre-filing paperwork and agrees to it. However, just a few changed words here and there from what the defendant saw and what the plaintiff submitted can make a world of difference. The defendant might not review the filed paperwork or scrutinize it closely enough.
Defendants also do not always understand all the rights they give up by not responding. For example, they lose the right to object to terms in the divorce. In addition, defendants may not fully understand everything the plaintiff is requesting in his or her divorce filings.
You should hire a divorce lawyer to at least review the plaintiff’s paperwork and ensure everything is above board and that you agree with the documents. The court’s thinking behind a default judgment looks like:
- The respondent has had opportunities to respond to the divorce petition and appear in court.
- The respondent has failed to use these opportunities.
- To make decisions, the court has only the information the plaintiff submitted.
- The court grants the petitioner the relief he or she asked for in the petition.
Depending on what the plaintiff’s divorce papers asked for, your wages could be garnished and your bank account was frozen. You may get liens against your property and see judgments on your credit report along with a credit score decrease.
If your divorce case does not involve children, property, joint accounts, or the like, you may be tempted to just ignore the divorce paperwork and let the judge issue a default decision. However, it is in your best interest to at least meet with a lawyer to review the paperwork.
How to Pursue a Default Divorce
Two main ways to pursue a default judgment in a divorce exist. The primary way is if you are the plaintiff and plan to do it with your spouse. The other method is if you’re the defendant and simply choose not to respond to the plaintiff or appear in court.
Of course, a default divorce can occur without anyone “pursuing” it per se. A defendant may just decide not to respond or not be able to through legitimate reasons.
Can a Default Divorce Be Overturned?
In most states, defendants or respondents have a set period of time to contest a default judgment. In Illinois, this time frame is 30 days after the court enters the default judgment. The respondent can ask the judge to vacate the default decision within that 30 days.
It becomes much more difficult after that deadline, and nearly impossible after two years. For example, if any property has been sold, the sale most likely cannot be undone. If children have adjusted well to a custody plan, then undoing it may be tricky at best. A lawyer can help you with navigating a default divorce both before and after the 30-day window.
Overall, default divorces are not a sure thing, especially since respondents can act quickly to vacate judgments. When a judgment is vacated, the divorce case starts over from scratch.
How to Overturn a Default Divorce
Respondents must act within the time frame to invalidate the decree for a default divorce. Lawyers are a critical help throughout this process because of the deadlines and paperwork involved.
You need solid reasoning to explain why you want the judgment overturned, and must be able to make your arguments against the plaintiff’s divorce case.
Your motion needs to outline why you missed the divorce court hearing. Courts typically look favorably upon reasons such as family emergencies and misplacing the divorce complaint paperwork. Even car trouble on your way to the divorce hearing can be a valid reason to get a judgment vacated. You are unlikely to have much luck if you explain that you were trying to delay the divorce or avoid being served.
You send a written request to the judge asking him or her to vacate the judgment. You must also send a copy to the other party and show up for a hearing in court.
Your motion must include a statement that you want the default judgment vacated and the date and case number of the judgment. You must explain why you missed the court date and the date and of time of that missed hearing. The motion must detail any defenses or arguments to the plaintiff’s divorce papers that you plan on making if a judge vacates the default judgment.
Your motion also explains when you will deliver or mail the motion and notice of motion to the plaintiff.
What Happens After the Court Vacates a Default Divorce Judgment?
A vacated judgment means the case proceeds as if there never was a default judgment. If you are the defendant, you have a restricted time frame in which to respond to the divorce papers. That is, unless your motion to vacate included your response. The divorce case proceeds based on your response filing. The court sets aside any awards or orders that stemmed from the default judgment.
When Would a Default Divorce Arise?
A default divorce that is not pre-planned to be a default typically occurs when the plaintiff cannot find the defendant. When the defendant is unreachable, the court usually requires that several methods, such as newspaper ads, be used to locate and inform him or her of the divorce. After these exhaustive efforts, the judge grants the plaintiff’s relief by default.
However, it does sometimes happen that the defendant, previously unreachable, is now around and wants the judgment vacated. In these cases, the court may agree to vacate the judgment, depending on the particulars of the situation.
When both spouses agree to a default divorce ahead of time, they typically iron out all the issues and settle the big and small details between them. They agree on one spouse filing the paperwork and the other not responding. Some spouses do this to avoid paperwork or to cut down on having to pay court fees. Some spouses also do not want to participate at all in the divorce process and force a default.
Is a Default Divorce Uncontested?
By its very nature, a default divorce is uncontested. Only one spouse is participating, and the other spouse is either unreachable or not participating in the process. Of course, there can be more going on behind the scenes. Some default divorces are genuinely that from beginning to end. One spouse truly cannot be reached and does not participate.
Much can go on before one of the spouses files divorce paperwork. A default divorce could be the culmination of months or even years of close collaboration or hotly contested arguments that led to agreements being worked out on paper and another understanding between the spouses to seek default judgment in a divorce.