When an individual is sued, they are required to respond to the complaint. When an individual responds to the allegations which were made against them, it is called filing an answer with the court. If the individual who is sued fails to respond within the required time period or if they fail to appear in court, the court will enter a judgment against them which is called a default judgment.
If an individual’s spouse serves them with a divorce petition, also called a divorce complaint, they are required to answer the complaint within their state’s time limit. If an individual ignores the petition or fails to appear in court, their spouse may request a default judgment.
A default judgment is a binding court order which grants the parties a divorce and, in most cases, awards everything that was demanded in the complaint for divorce. It is important to note that if an individual does not appear in court, the court will not be able to consider their side of the story, which may have changed the court’s orders regarding:
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How Long Does a Default Judgment Take in Family Court?
Prior to a default judgment being entered, certain requirements must be met, including:
- The defendant was served with the Summons and Complaint. The plaintiff must provide Proof of Service of
- Summons and Complaint and file it with the local court;
- The time period has expired for the the defendant to respond; and
- The defendant failed to answer the complaint in the allotted time period.
In some jurisdictions, a defendant must also be served with a statement of damages. This statement of damages provides a list of the amount or property which a plaintiff seeks.
It is important to note that, in some cases, a default judgment may be issued even if a defendant files an answer. A court may grant a judgment if a defendant:
- Fails to appear at a court hearing; and
- Does not have a legal defense to the lawsuit.
After the deadline for filing an answer has passed, the party who initiated the proceedings can file a motion for default judgment. The exact procedure for filing this motion may vary based on the jurisdiction.
Generally, however, a motion for default is set for a hearing. If, at that time, the other party does not appear in court , the court may then enter a default judgment.
In many cases, an individual may be confused regarding what they will receive after a default judgment is awarded. In most cases, a default judgment means that the party who initiated the case receives the relief they requested in their complaint.
For example, if a party files for divorce, they will get the divorce. Typically, this also applies to other related relief, which may include:
- Custody;
- Support;
- Property and debt division; and
- Attorney’s fees.
The court, however, may not grant the relief if it is not legally appropriate. However, to the extent that it is appropriate, in most cases, the requesting party typically is granted all or most of what they request in their pleadings.
Can I Move to Vacate a Default Judgment in Family Court?
Yes, under certain circumstances, a default judgment may be vacated in family court. In most cases, the party who wants the default judgment vacated must file a motion to set aside the default judgment.
In the motion to set aside the default judgment, the filing party must provide evidence as to why their non-response is excusable. This may include a reason such as they did not receive notice of the filing.
It is important for the party who wants the judgment vacated to file their motion as quickly as possible. The longer they wait, the less likely the court will be to vacate the judgment.
What Do I Need to Prove In Order to Vacate a Default Family Judgment?
Under certain circumstances, a default judgment may be removed. This process is also known as vacating or setting aside the judgment.
In order to have a default judgment set aside, or vacated, the party must show the court that there is a good reason to do so. As previously noted, this is done in the motion to vacate the judgment that is filed with the court.
In the motion to vacate the judgment, the party must typically cite one of the following reasons as their reason for failing to respond or missing their court appearance:
- Mistake, where the individual reasonably misunderstood the facts or the law;
- Inadvertence or surprise, which may occur if a petition is served in a way that leaves the defendant with an unreasonably short time to respond or if they believed someone was responding on their behalf;
- Excusable neglect;
- Lack of notice;
- New evidence has been discovered;
- Fraud or misconduct, which may occur if the petition was never served or some other type of misconduct occurred;
- Duress, which occurs if an individual was coerced into not responding;
- The judgment was satisfied or discharged; or
- Some other compelling reason justifying the defendant’s failure to answer.
In most cases, the court will hold a hearing on the motion and determine whether or not to vacate the judgment. The success rate of these motions varies from court to court.
However, due to the complex nature of the legal system, these types of motions are fairly liberally granted. A court is more inclined to provide each party with an opportunity to argue their side of the case on the merits rather than permitting a default judgment to stand.
It is important to note that the type of argument a defendant will be able to present depends on how long the default judgment has stood. For example, if an individual is arguing a mistake, surprise, or excusable defense more than a year after a judgment has been entered, they may find themselves before a hostile court. On the other hand, if the defendant had been outside the country or was not properly served, the court will likely be more understanding.
It is also important to note that prevailing on a motion to vacate a default judgment is not the same as willing the case. Setting aside a default judgment simply provides a party with the opportunity to file an answer to the original complaint.
In addition, the defendant may be required to show that there are legitimate legal defenses or legal issues which the court should consider. For example, a defendant may argue that the default judgment is not in their child’s best interests or that the property distribution awarded in the judgment violates the nuptial agreement of the parties.
Do I Need an Attorney In Order to Get Relief From a Default Judgment?
Yes, it is essential to have the assistance of a family law attorney if you are attempting to have a default judgment vacated. It can be a complex process which may vary by jurisdiction.
Your lawyer can file and present your motion to vacate the default judgment to the court. In addition, if your motion is granted, your attorney can help you navigate other aspects of the divorce process, such as distribution of property, child custody, and child support payment calculations.
