Default Divorce

Posted: 17 September, 2019

What If My Spouse Won’t Sign The Divorce Papers?

You’ve decided that you want a divorce. You’ve even found the courage to tell your spouse that you want a divorce and that you hoped it would be amicable. But your spouse responded by telling you that they’ll refuse to sign the divorce papers, or that they won’t participate in the divorce proceeding. Can you still get a divorce?

Yes, even if your spouse refuses to sign the divorce papers or participate in the proceeding, you can still get a divorce.

Once your spouse is personally served with the Complaint for Divorce and Summons, they have a period of 20 days in which to file an Answer. If your spouse fails to file an Answer within the 20 day period, then you can immediately request the Clerk of the Court to issue a Default against your spouse and then request the Court to enter a final Decree of Divorce by default.

A Default is a document issued by the Clerk of the Court which certifies that your spouse has not filed a timely Answer to your Complaint. The Court interprets the Default to mean that your spouse does not oppose the relief you requested in your Complaint and that your spouse consents to the Court granting what you requested in your Complaint.

What If My Spouse’s Whereabouts Are Unknown?

You’ve filed your Complaint For Divorce and the Clerk of the Court has issued the Summons. Now, you need to have your spouse personally served with both documents, but you can’t. You don’t know where your spouse is, or if you do know where your spouse is, they are purposely avoiding being personally served with your Summons and Complaint. Can you still get a divorce?

Yes, even if your spouse’s whereabouts are unknown or if your spouse is purposely avoiding personal service of your Summons and Complaint, you can still get a divorce; however, the process is trickier and will take longer.

You must demonstrate to the Court that you have either exercised “due diligence” to locate your spouse, or that attempts to personally serve your spouse have been made but that your spouse has deliberately avoided service. If the Court is satisfied with your efforts, then it will enter an order permitting you to serve your spouse by publication.

The order for service by publication will require you to publish the Summons in a newspaper once a week for four (4) consecutive weeks and to mail the Summons and Complaint to your spouse’s last known address. Your spouse will have 20 days from the last publication in which to file an Answer. As explained above, if your spouse fails to file an Answer within the 20 day period, then you can immediately request the Clerk of the Court to issue a Default against your spouse and then request the Court to enter a final Decree of Divorce by default.

Will I Have To Attend A Court Hearing To Get A Default Divorce?

The Clerk of the Court has issued the Default against your spouse and you submitted the default Decree of Divorce to the Court for the Judge’s signature. Will you need to attend a hearing before the Judge will grant your default divorce?

It depends.  It is within the Judge’s discretion to grant your default divorce without a hearing, or to require you to attend a “prove-up” hearing before granting your default divorce.

The prove-up is a short hearing which is set at certain times on the Judge’s calendar. During the prove-up hearing, you will answer questions under oath about service of your Summons and Complaint for Divorce, and the basic facts underlying the relief you requested in your Complaint. If the Judge is satisfied with the information provided at the prove-up hearing, then he or she will grant your default divorce.

The Court Granted My Default Divorce. Now What Do I Do?

The Judge granted your default divorce and your Decree of Divorce has been filed.  Are you finally done?No, although you are officially divorced, you aren’t done just yet.

In order to finalize the divorce proceeding, you must file a Notice of Entry of Order with a copy of the filed Decree attached, and mail both to your ex-spouse at their last known address. The Notice of Entry of Order is a document that provides your ex-spouse with official, legal notice that a final Decree of Divorce has been entered by the Court. Filing and mailing the Notice of Entry of Order is critical because it starts the clock ticking on important deadlines for your ex-spouse to ask the Court for relief from the Decree of Divorce.

What If My Spouse Obtained A Default Divorce Against Me?

You just discovered that your spouse obtained a default Decree of Divorce against you, and it is grossly unfair. You weren’t personally served with the Summons and Complaint for Divorce even though your spouse knew your whereabouts, or you were personally served but you believed you and your spouse were attempting to reconcile and that your spouse would dismiss the divorce proceeding. Is there anything you can do about the default Decree of Divorce?

It depends.  The law provides the Court authority to grant you relief from the default Decree of Divorce under certain circumstances and within limited time frames.  If a default Decree of Divorce has been entered against you and it results in an unfair division of assets or debts, or an unjust or inequitable award of alimony, or determines custody which is not in the child’s best interests, then you must promptly ask the Court for relief and within a certain period of time.