Family Law

My Spouse Just Served Me With a Default Divorce Judgment: What Can I Do?

By Kristina Otterstrom, Attorney
Find out how more about default judgments and how to set them aside.

If it’s clear you’ve ignored all the notices regarding your divorce case, a judge can enter a default divorce judgment against you and grant your spouse's requests for support, property, and custody. If your spouse serves you with a default judgment, don’t panic. Under certain circumstances, you can ask a court to set aside a default, but you’ll need to act fast.

What Is a Default Judgment?

If your spouse serves you with a divorce petition, it’s important to respond. If you don't file an answer within the requisite time period, a judge can move forward without your input and grant a divorce by default. Here's how it works.

The spouse that files the divorce complaint (also called a divorce petition) is generally called the petitioner. Once the complaint is filed, the petitioner spouse must serve it (along with a summons) on the other spouse (the respondent). This paperwork notifies the respondent spouse about the divorce proceeding and the deadline to answer.

When a spouse has been served with a divorce petition but misses the deadline to answer, a court has the authority to proceed with the divorce. The spouse who obtains the default usually receives everything requested in the petition. For example, your spouse may have asked for full custody, spousal support, alimony, and the majority of the marital assets. If you fail to respond to the petition, the judge will have no reason to deny your spouse's requests.

In some cases, a spouse can obtain a default judgment without personally serving a copy of the divorce complaint. Specifically, if the responding spouse refuses to accept service or tries to dodge a process server, a judge may allow alternative methods of service, including certified mail or publication (a notice published in the local newspaper). If there is still no answer after the notice has been published, the court can proceed.

What Should I Do If My Spouse Obtained a Default Judgment?

If your spouse has served you with a default judgment notice, you should contact an attorney right away. There are specific deadlines that apply in default cases. Although a default is serious, there are ways an attorney can help you set it aside.

Let your attorney know if you never received a copy of the divorce complaint or if you weren’t properly served. Judges prefer that both spouses participate in the process, so if you can show you didn’t know about the divorce, a judge may grant your request to set aside the judgment.

Whatever the reason you didn't respond, you have to act quickly. If you appear before a court just a few days after a default was entered, a judge is more likely to set it aside than if you wait very long. For example, if property has already been distributed and the children have adjusted well to a custody plan that was ordered as the result of a default, it will be more difficult for a court to change the status quo: It may not be possible to undo the property distribution, and it may not be in the best interest of the children to uproot the living arrangements they've grown accustomed to.

If you do move quickly and a court sets aside the default judgment, your divorce case will start over, from the beginning. You’ll have the opportunity to file an answer to the divorce complaint and eventually go to trial, if necessary.

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