The divorce process is draining, both emotionally and financially. It is even more complicated when a divorcing couple cannot cooperate to end the marriage amicably. Fortunately, as a no-fault divorce state, does not require either spouse to prove the reason behind the divorce. Instead, the law requires only that one spouse prove the marriage is irretrievably broken.
Although this seems to suggest the process might be easy, there can be problems. For example, when one spouse refuses to respond to the petition for dissolution of marriage, this non-responsive spouse creates a unique legal situation. Many clients have questions about non-responsive spouses and the ability to divorce in this situation.
when one spouse fails to respond to a petition for dissolution of marriage, there is relief in seeking a default final judgment of dissolution of marriage; however, there are several limits, requirements, and/or caveats in a default divorce situation.
Divorce by Default
First and most important, the filing spouse must ensure that his/her spouse has been properly served with the Petition for Dissolution of Marriage in a way that is consistent with statutory requirements. Then, once service is achieved, an Affidavit of Service must be filed in the divorce case file with the Clerk. The clock will start ticking on the date of service and the spouse has twenty (20) calendar days to file a responsive pleading or a motion to extend the time to file said responsive pleading.
In the petition, the filing spouse will generally list the issues in the marriage and the relief sought. The receiving spouse thus has the opportunity to deny or object to any terms in the petition, to file any affirmative defenses, and to file a counter-petition, if desired. The opportunity to respond ensures each party has the ability to exercise his/her right to due process.
If the receiving spouse fails to file a responsive pleading, (Answer, for example), or any other motion or request to extend time, then the filing spouse can file a motion for entry of a default final judgment. The Default is actually entered by the Clerk. Then, a final hearing is scheduled with the judge so that the filing spouse can testify as to jurisdiction and other relevant matters. In this event, the non-responsive spouse essentially waives or abandons his/her right to object, deny, or offer defenses to the claims made by the filing spouse. A Default Final Judgment of Dissolution of Marriage is a final judgment of divorce and it terminates the marriage.
Notwithstanding the foregoing, it is important to understand the caveats and limitations of default judgments. First, courts highly disfavor default judgments. This is for obvious reasons since both spouses do not have an opportunity to participate in the process. Therefore, it is relatively easy to have a default judgment set aside. When this happens, the marriage is not reinstated; however, the relief in the judgment is vacated or set aside and the case issues are litigated in the court.
Next, if there are minor children born of the marriage, then the Court will likely defer decisions about timesharing since in most cases, it is almost impossible to make decisions regarding the best interests of children when only one parent is present to provide testimony or other evidence. Likewise, it can be tricky to have the court establish an amount of child support or alimony unless the filing spouse has substantial competent evidence of the other spouse’s employment, income, and access to benefits for the children. Again, if that evidence is not available, the Court will be constrained in establishing child support. The Court may have to impute minimum wage to the absent parent which may result in a very low child support number, possibly much lower than it should be. Likewise, the Court may not be able to award alimony because there is insufficient evidence of income and the ability to pay alimony.
Defaults can be further problematic if the receiving spouse is an active duty member of the Military. These service members may be unavailable due to the needs of the military and may not be able to reply timely. If a divorce involves a military member, special considerations will have to be evaluated. A default may not be an option.
This is a broad overview of default divorce. There are many other legal and factual issues to consider in the default scenario.
