Re-Open a Default Divorce

Most states have codified legal grounds for divorce in their statutes. For instance, the state of Iowa recognizes “no-fault divorce,” which permits a marriage to be dissolved when there is evidence of a breakdown of the marital relationship with no likelihood it can be preserved. The petitioner is not required to blame the other spouse for or prove any particular misdeed or wrong. This is following the local laws.

Check your local state for regulations regarding the residency requirements and waiting period time frames. For instance, Iowa law requires a ninety-day waiting period, from the date the respondent is served dissolution of marriage papers, before the court may enter a final decree. Under certain situations, the court may waive the waiting period.

When Does a Judge Award a Default Judgment?

The court’s rules state the circumstances in which a judge can set aside a default judgment. A judge can set aside a default judgment for the following reasons, among others:

• Because of a mistake, inadvertence, surprise, or excusable neglect, you must file your motion within six months after service of written notice of entry of the judgment;
• Due to the other side’s fraud, misrepresentation, or other misconduct, you must file your motion within six months after service of written notice of entry of the judgment;
• Because the judgment has been satisfied, released, or discharged, you must file your motion within a reasonable time and;
• Because you were not personally served with the summons and complaint, you must file your motion within six months after service of written notice of entry of the judgment.

The summons and complaint were never personally served to the defendant whose judgment was entered against is another reason that the judge may set aside the order as mentioned above. Therefore, to set aside your default judgment, the judge must agree that one of these reasons addresses your particular situation and that your circumstances warrant the judgment being set aside.

Furthermore, your deadline for filing a motion to set aside the default depends on the specific reason you are requesting the judge to set the judgment aside. If the defendant does not answer the plaintiff’s complaint, the plaintiff can finish the case without the defendant’s participation by asking the court to enter a “default.” Because the defendant did not answer, the plaintiff can get a one-sided judgment.

Each state has its timelines and deadlines for the judgments. For instance, if the other party does not file an answer within 20 days of being served your complaint, you may request the court to default on the other side and grant you everything you asked for. To do this, you must show proof that you served the other party according to the rules. At the default hearing, the judge will go over your complaint and all attachments and inquire about some things to verify for a default to be entered.

Some of the common reasons that a default is not granted at this hearing consist of the following:

• Improper service of the complaint;
• More information is needed to enter a child support order and;
• The defendant is in the military and has rights under the Servicemembers Civil Relief Act.

How to Navigate Through Re-Opening a Default Divorce Case

Keep in mind that the court will only open your divorce case if you have compelling reasons for them to rule upon. Below are some of the tips to improve your chances of success.

First and foremost it is important to do research and be ahead of the process. Being aware of the local state deadlines will assist you in filing the proper documentation promptly. For your case to move forward, you must file your application within a reasonable time. A delay would do injustice to your former spouse because they might lose some of the evidence they need for the case. Locating witnesses also becomes more complicated with time. Typically, state laws define what reasonable time translates to.

Ideally, the court should not be your first place of call if you want to renegotiate your divorce judgment. You may reach out to your former partner and see if you can negotiate an agreement first. You can then bring the agreement back to the court for ratification.

Usually, an out-of-court agreement is likely to require less time and resources than court litigation. Secondly, civil courts have numerous cases and limited resources, so they encourage out-of-court settlements whenever possible.

Additionally, you need to prepare for hearings. Expect at least two forms of hearings if you do go to court. First, the court will hold an initial hearing to evaluate whether you have legal grounds to reopen the case. You may get an idea of the general direction your case is likely to take during the initial hearing. A full hearing follows if the court decides on the validity of reopening the case.

Keep in mind that reopening and winning a divorce case requires legal expertise and experience. It is important to note that the court will not reopen your case because you feel aggrieved. It is recommended to consult a divorce attorney to scrutinize your case and advise you before filing the reopening application.

What is an Order to Show Cause?

According to the New York Courts, an Order to Show Cause is a process that a party may utilize to request that the court reopen their case, typically after a default judgment has been entered. A default judgment can be entered if a defendant fails to answer a summons, or fails to appear for trial or hearing. This method temporarily halts the enforcement of a judgment and sets a time for the plaintiff to challenge the defendant’s request to start over.

An Order to Show Cause has to be in writing. If you are supposed to appear in court, the order will write on the order that a personal appearance is mandated and testimony will be taken. If the court sets a new court date for trial, both sides will be notified by mail. Forms to prepare an Order to Show Cause to vacate Landlord & Tenant judgment or an Order to Show Cause to vacate a civil judgment with the affidavit in support of an Order to Show Cause to vacate a civil judgment are available in the local clerk’s office where the judgment was entered.

When Do I Need to Contact a Lawyer?

A divorce case the first time around itself is time-consuming and emotionally draining. If for some reason you decide to reopen a default judgment divorce case it is important to know the reality of what you may be signing up for. Therefore, it is highly recommended to seek out a local divorce attorney to guide you through the process.