A DivorceAttorneyHome.com reader recently posed an important question about the outcome of their divorce, and how custody of the children would be decided. The reader asked about full custody, or as it is known in divorce court, sole physical custody . They wanted to know, “What are the deciding factors I will get full custody of our kids?

Many state courts are in favor of joint child custody, but some divorce courts may choose to award sole physical and legal custody to one parent and child visitation to the other parent. Another child custody option scenario is when one parent is awarded sole physical custody but shares joint legal custody. Both parents have the right to make decisions about the children’s upbringing, but the custodial parent is responsible for making the day-to-day decisions in the child’s life. Under either scenario, the court is going to decide what is in the best interest of the child.

There are basically two types of full or sole child custody in a divorce: physical child custody and legal child custody.

Under physical child custody, the children live with exclusively with one parent, and the other may be given visitation rights, a schedule determined by the court to determine access by the noncustodial parent..  Under legal child custody,  one parent has the exclusive right – granted by the court – to make decisions about the child’s education, medical treatment, and religious teachings.

Now we know the definition of full custody, how does one get it in a divorce?

The answer to this question could potentially have 50 variations, as divorce laws and statutes can differ from state to state. The best way is to enlist the assistance of a qualified and experienced divorce law attorney. Here at DivorceAttorneyHome.com, we can provide you with the resources you’ll need to find a divorce attorney in your area. It all comes down to what is determined to be in the best interest of the child. These are the most common factors considered in determining “best interest”:

• The child’s age and health
• The health of the parents
• The stability of the parents and their lifestyle
• How well the children have adjusted to their community and their school (Would it be detrimental to move them away?)
• The parents’ ability to provide for the child’s needs, both financial and emotional
• The quality of relationship the child has with each parent
• Whether the child or the parents have disabilities
• The children’s preference of which parent to live with, providing the court rules the children are old enough or mature enough to make such a decision, and if they agree the children’s decision is in their best interests.

Getting a divorce is a life-changing event. Each spouse has needs and legal rights to be settled, but what about the children? When parents have arrived at the decision that divorce is the only option, important considerations and plans must be made to protect the welfare of their kids. There are many child custody issues to consider, but let’s look at the top three:

1. The children’s emotional needs

Facing the breakup of mom and dad’s marriage is a traumatic experience for children, and child custody is a worrisome part of that.  Naturally, they are going to wonder whether it’s their fault, or if there’s something they could have done to prevent it. Also, it’s very likely that the divorced parents will live in different parts of a city or even another city or state or country altogether. Facing a move and the prospect of having to settle into a new school and make new friends while struggling to understand why mom and dad aren’t going to live together can compound their stress. Divorcing parents must assure their children that – although they won’t be married anymore, they will always be there for the kids. Telling the children early on in the process is essential, child psychologists recommend, to allow them ample time to process this life-changing event, and prevent a more traumatic experience for them.

2. Legal and Financial Details

Divorce planning comes with many legal and financial details to be ironed out. What child custody will look like is an essential question. Will there be joint custody? Will one parent have primary custody? How will visitation be arranged? Which parent will have to pay child support? Which parent will be responsible for the children’s health care and insurance?  These are just scratching the surface. These types of decisions will be fraught with emotion. This is why it is essential to hire an experienced divorce attorney to help you see through the emotion and make sound decisions about child custody. Coming to an amicable agreement with your ex-spouse is essential to the children’s well being. It will also help maintain a civil relationship with the ex, which will benefit you all.

3. Parents, Once and For All

Another very important aspect of the child custody question is the fact that, although living apart, you are still parents to the children. No matter the outcome of the divorce, there will always be a connection between spouses in this way, so both spouses must be committed to the welfare of the children. Divorced parents are no longer married, but they will be parents the rest of their lives. Emotion is inevitable in a divorce. Having a dispassionate third party like a good divorce attorney is essential to help you look beyond your own needs and do what’s best for the children.

Need answers? Seeking advice? We can help. Log on to our website, DivorceAttorneyHome.com, for the resources you’ll need to guide you through this difficult time.

A premarital agreement is an agreement between two individuals who are contemplating marriage and who are wanting to decide certain issues related to their property, income and earnings. The agreement must be in writing and signed by both parties. The premarital agreement become enforceable at the time of marriage and determines the distribution or the property, assets and earnings if the marriage ends in divorce.

What does the Texas premarital agreement do?

• Outlines the rights and obligations of each spouse with regards to their property and assets if the couple eventually files for divorce.
• It determines who has the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
• It outlines what happens to the property if the couple separates, the couple files for divorce or one of the spouses dies.
• It may also outline how spousal support may be changed or terminated.
• It may determine how a will or trust may be allocated
• It may determine how life insurance may be allocated
• According to Texas state law, child support obligations may not be adversely affected by the premarital agreement.

Texas state laws allows for the premarital agreement to be modified, in writing, but both parties must agree and sign a written agreement for modification.

Is my Texas premarital agreement enforceable?

If you live in Texas, the Texas family code is very specific about when the Texas prenuptial agreement is not enforceable. According to Texas law, “A premarital agreement is not enforceable if the party against whom enforcement is requested proves the following:
1. the party did not sign the agreement voluntarily; or
2. the agreement was unconscionable when it was signed and, before signing the agreement, that party:

• was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
• did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
• did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. The remedies and defenses in this section are the exclusive remedies or defenses, including common law remedies or defenses.”

So if you are going through a divorce in Texas and you signed a prenuptial agreement you have two ways to prove that the agreement is not legitimate: the agreement was made without the voluntary consent of one of the parties or the agreement can be proven to be unconscionable.

In the first example you must prove that you did not “voluntarily” agree to the agreement. This would be difficult to prove unless your fiancé coerced you in some manner (force, threats, intimidation, bullying, duress).

If you cannot prove involuntary consent you must prove “unconscionability” (grossly unfair according to society’s social conscious) and that before you signed the agreement you were not given “a fair and reasonable disclosure of the property or financial obligations of the other party.” Additionally, you did not waive your right to the information and you did not have knowledge of the financial obligations of your spouse.

The court is responsible for deciding the issue unconscionability according to law.

Couples who are considering divorce should consult with a divorce lawyer. Divorce attorneys understand Texas divorce law and can ensure that your rights are protected.

Attorney can help with counseling, domestic violence–and, of course, the divorce itself

m

Also see “Divorce in Wisconsin” for a state overview and an intro to filing pro se, that is, without benefit of an attorney. A related article also may be of interest: “Getting a divorce in Milwaukee.”

Madison and Dane County

For you in the Madison area, we need to emphasize three aspects of divorce.

First, you’re always better off finding an attorney who’s familiar with not only state law but also the local courts and judges. Second, you should seriously consider emotional/grief counseling (with which a good attorney can help you with). Third, if domestic abuse/violence is a factor in your family equation, you must deal with it first and foremost, for your own safety, the safety of your children, and even your pets.

Consider professional counseling

Realize this: once you have retained a compatible, trained and experienced divorce attorney, you have a powerful ally who can help with all things legal, plus counseling referrals and every aspect of domestic violence, including safety/escape plans, counseling and emergency shelter.

Addressing domestic violence

Also, residents of Madison and Dane County have agencies and facilities that can help with domestic violence, including these online resources:

• Dane County Sheriff’s Office;
• Domestic Abuse Intervention Center;
• Dane County District Attorney’s Office;
• United Way of Dane County.

Venue

Your papers will be filed at the Clerk of Courts office:

Clerk of Circuit Court and Register in Probate

Dane County Courthouse
Room 1000
215 S Hamilton St.
Madison, WI 53703

Click here for a map.

Common FAQ

Following are selected Questions and Answers from the Family Court’s FAQ page:

What’s the difference between legal separation, annulment, and divorce?

• Legal Separation: A legal proceeding that separates the parties’ property and finances, and makes custody and placement orders regarding children, but continues their marriage. Legal separation is an alternative for people who wish to avoid divorce for religious or other reasons.
• Annulment: Dissolves a marriage that was invalid from the beginning. A marriage may qualify for annulment only if it satisfies very limited statutory circumstances. See Wis. Stat. §767.313.
• Divorce: A legal proceeding to dissolve an irretrievably broken marriage.

What if I don’t want a divorce? Is there anything I can do to stop it?

The only basis for divorce in Wisconsin is that the marriage is “irretrievably broken.” This means the husband and wife can find no way to work out their differences. A judge usually will find a marriage irretrievably broken even if only one spouse wants a divorce.

How do I know what county to file for divorce in? Is it where I got married?

To file for a divorce in Dane County, one party must have lived in the State of Wisconsin for six months prior to the time the divorce is filed and in Dane County for at least thirty days before filing for divorce. Generally, you file for divorce in the county in which you are a legal resident.

What if I’m pregnant and going through a divorce?

Your husband is legally presumed to be the father of your child. You must notify the Court Commissioner or Judge of your pregnancy so that a lawyer can be appointed to represent the child’s best interests. That lawyer, the guardian ad litem, must recommend to the judge whether genetic testing should be undertaken to determine whether your husband or another person is the father of your child, before you can be divorced. This often involves waiting until the child is born, when genetic testing can be performed.

Do I need a lawyer in order to file for divorce?

There is no requirement that you must hire an attorney in order to file for divorce. Many people handle their own divorce, though lawyers have the training and experience to best present your case.

Free evaluation

No matter your marital situation, we can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.

Ins and outs of the default judgment

mike hinshaw

We get questions

I live in Florida, and I have legally filed for divorce, and have done everything I know,  but my spouse refuses to sign the papers–what can I do?

Basically, what you’re asking is, “Can I be held in a marriage against my will?”

In a word, the short answer is, “No.”

Requirements must be met

Residency

The longer answer is you can proceed with divorce even though your spouse refuses to participate. However, you must make sure that certain requirements are fulfilled.

The first of these are the residency requirements. According to Florida statute 61.021, “To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.”

Properly completed paperwork–including notification

For spouses who agree on everything, an expedited, no-fault procedure is available, including waiver of service notification. This requires both spouses to sign forms at the clerk’s office, attesting to their agreement to “simplified dissolution of marriage.”

If your spouse is refusing to sign the papers you’ve sent, then likely this was not an option for you. If your petition (and any ancillary papers) were properly drafted and filed, then the next consideration is that your spouse was properly served. If your petition, other papers and notification of service were handled by a trained, experienced divorce attorney, then everything should be fine.

Why do spouses refuse to sign?

However, if you’ve been working on your own as a pro se litigant (that is, without benefit of an attorney), your original petition (or any ancillary papers) could be flawed. If that is the case and your spouse has hired a competent attorney, it’s highly likely the attorney has pointed out such flaws to your spouse. In such cases, responding spouses may resort to “dragging their feet,” perhaps as a stall tactic to improve their legal positions–or simply as retaliation, knowing that doing so will cause anxiety and frustration.

In other words, if “the other side” knows the court is likely to dismiss the case, there’s no pressure because there’s little threat of a “default judgment.” Once spouses are legally served with notification of the petition, they have 20 days to respond. In lieu of a proper, legal response, the plaintiff files a motion for default judgment, and the court is almost sure to award the plaintiff all requests.

Why do respondents fail to reply? It could be for reasons previously mentioned, or it could be the respondent doesn’t realize the gravity of notice from the court (that is, “hoping it will just go away”)–or it could be something along the lines of simply being sick of the whole thing and therefore has no objection to the plaintiff’s eventual obtaining of a default judgment.

Filing for default judgment

From the court (12.922 Forms A – C):

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS
12.922(a), MOTION FOR DEFAULT, and
12.922(b), DEFAULT

When should these forms be used?

If the other party has failed to file or serve any documents within 20 days after the date of service of your petition, you may ask the clerk of the circuit court to enter a default against him or her by filling out this form and filing it with the court.  Generally, a default allows you to obtain an earlier final hearing to finish your case.  Once the default is signed by the clerk, you can request a trial or final hearing in your case.

To obtain a default, you will need to complete Motion for Default, on Florida Supreme Court Approved Family Law Form 12.922(a). You will then need to file your motion for default along with the Default, on Florida Supreme Court Approved Family Law Form 12.922(b), so that the clerk can enter a default for you if your motion is proper.

This form should be typed or printed in black ink.  After completing this form, you should file the original with the clerk of the circuit court in the county where you filed your petition and keep a copy for your records.

What should I do next?

After the default has been entered, you must ask for a hearing, so that the judge can consider your petition. To do this, you must contact the clerk=s office, family law intake staff, or judicial assistant to schedule a hearing and file a Notice of Hearing (General), on Florida Supreme Court Approved Family Law Form 12.923, with the clerk. A copy of the notice of hearing must be mailed or hand-delivered to each party in the case. You must send a notice of final hearing to the defaulted party.

Free evaluation

No matter your marital situation, we can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.

Webb County District Court has standing order for divorce litigants

m

Texas divorce links

We have quite a bit of up-to-date material about divorce in Texas, so before we focus on Laredo and Webb County, here’s a list of other pieces you may find relevant:

• Divorce in Texas;
• Collaborative divorce in Texas;
• Texas property division;
• Hidden assets, Texas divorce;
• Getting a divorce in Houston;
• Getting a divorce in Austin;
• Getting a divorce in Fort Worth.

These are only a few of our posts about Texas-related divorce. Obviously, divorce is such a huge topic that we can’t cover everything in one, short article. Conversely, no practical solution exists to avoid some overlap between state law and local court rules.

Laredo & Webb County

For you in the Laredo area, we need to emphasize three aspects of divorce.

First, you’re always better off finding an attorney who’s familiar with not only state law but also the local courts and judges. Second, you should seriously consider emotional/grief counseling (with which a good attorney can help you with). Third, if domestic abuse/violence is a factor in your family equation, you must deal with it first and foremost, for your own safety, the safety of your children, and even your pets.

Consider professional counseling

Realize this: once you have retained a compatible, trained and experienced divorce attorney, you have a powerful ally who can help with all things legal, plus counseling referrals and every aspect of domestic violence, including safety/escape plans, counseling and emergency shelter.

Addressing domestic violence

Also, residents of Laredo and Webb County have agencies and facilities that can help with domestic violence, including these online resources:

• Laredo-Webb County Safe Haven;
• Webb County Domestic Violence Unit;
• Mercy Ministries of Laredo;
• Children’s Advocacy Center;
• Webb County Sheriff’s Office;
• Laredo Police Department.

Venue for filing

Your first place to start is the Office of the Court Clerk.

Here’s a map to District Court in Laredo.

Local rules: Standing Order of the Court

Like some other courts in Texas, the Webb County District Court has promulgated a standing order that applies to both parties in a divorce case. In other words, even if you don’t want the divorce, if your spouse files for divorce, you are subject to court sanctions if you are found in violation of any rule proscribed in the standing order.

Basically, the rules tell each party to behave: don’t hide money, don’t muck about with children, don’t play games with the court. And, like most things legal, the rules are quite specific–here’s the intro:

No party to this lawsuit has requested this order. Rather, this order is a standing order of the Webb County District Courts and Webb County Courts at Law that applies in every divorce suit and every suit affecting the parent-child relationship filed in Webb County. The District Courts and the County Courts at Law of Webb County have adopted this order because the parties and their children should be protected and their property preserved while the lawsuit is pending before the court. Therefore it is ORDERED:

And the language goes on to to address very specific items, under these headings:

A. No Disruption of Children

B. Conduct of the Parties During the Case

C. Preservation of Property and Use of Funds during Divorce Case

D. Personal and Business Records in Divorce Cases

E. Insurance in Divorce Cases

F. Specific Authorizations in Divorce Case

G. Earnings Information to Initial Hearing

There’s a couple of other points, but I trust you get the message–especially if you read the order itself.

Free evaluation

No matter your marital situation, we can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.

Arizona law won’t let either spouse be ‘held hostage’ in marriage

m

We get questions

What if  I have legally filed for divorce, and done everything I know,  but my spouse refuses to sign the papers?

Basically, what you’re asking is, “Can I be held in a marriage against my will?”

In a word, the short answer is, “No.”

Requirements must be met

However, the full answer is, “It depends.” All your paperwork must be legal, with all the T-s crossed and all the I-s dotted–and this includes proper service on your spouse.

Obviously, the easiest way to ensure everything is proper is to retain a compatible, trained and experienced attorney who knows Arizona family law inside and out as well being familiar with all local court rules and the various judges.

For example, working on your own as a pro se litigant (that is, without benefit of an attorney), your original petition (and any ancillary papers) could be flawed.  If that is the case and your spouse has hired a competent attorney, it’s highly likely the attorney has pointed out such flaws to your spouse. In such cases, responding spouses may resort to “dragging their feet,” perhaps as a stall tactic to improve their legal positions–or simply as  retaliation, knowing that doing so will cause anxiety and frustration.

In other words, if “the other side” knows the court is likely to dismiss the case, there’s no pressure because there’s little threat of a “default judgment.” Once spouses are legally served with notification of the petition, they have 20 days to respond. In lieu of a proper, legal response, the plaintiff files a motion for default judgment, and the court is almost sure to award the plaintiff all requests.

Why do respondents fail to reply? It could be for reasons previously mentioned, or it could be the respondent doesn’t realize the gravity of notice from the court (that is, “hoping it will just go away”)–or it could be something along the lines of simply being sick of the whole thing and therefore has no objection to the plaintiff’s eventual obtaining of a default judgment.

Residency requirements

One of the spouses must be an Arizona resident for at least 90 days. This applies to military personnel, as well: being stationed in Arizona for at least 90 days qualifies as residency.

The petitioner files for dissolution of marriage in the Superior Court of the county of residence.

Proper service

Several documents must be provided to the respondent, either by “a registered process server or an authorized law enforcement officer . . . or by having the other party sign a document to accept service,” according to the Maricopa County Superior Court. However, a spouse who refuses to file a response is unlikely to waive notification and will probably have to be served. The court also says, “You may also serve by means of postal or commercial delivery by which you can obtain and file with the Court a copy of the Respondent’s (and no one else’s) signature of receipt of the package containing the court papers. If the Respondent lives out-of-state, he or she may be served by means of mail, or commercial delivery, by which you can obtain and file with the Court a copy of the Respondent’s (and no one else’s) signature of receipt of the package containing the court papers.”

Waiting period

Then you wait. For one, dissolution of marriage can not be granted until 60 days have passed. As for the response, says the court, “After service of the petition, the Respondent must file a response within 20 days if he or she lives in Arizona. If the Respondent lives outside of Arizona, he or she would have 30 days to file a response. If service was completed by publication, the waiting time is 60 days after the 1st day service was published.”

Filing for default judgment

Again according to the court:”

If you want to set a default hearing, you must complete the “Application and Affidavit of Default” and file it with the Clerk of the Court. You must be sure service of the petition was complete, and that the other party did not file a written Response or Answer with the court.

At the time you file the “Application and Affidavit of Default” with the Clerk of the Court, make sure you have two (2) copies of the “Application and Affidavit of Default” date-stamped by the Clerk. You must mail or hand-deliver one copy to the other party the day that you filed the “Application and Affidavit of Default” with the Clerk of the Court. After you have given the other party a copy of the “Application and Affidavit of Default” you must wait 10 court days.

If the other party still does not file a written Response or Answer in 10 court days, you may be able request a default hearing date.

To request a default hearing, call 602-372-3332.

Obviously, this all entails quite a bit of paperwork and knowledge of the legal system and local court rules. Furthermore, your situation may be more complicated if you are seeking to end a covenant marriage.

Free evaluation

No matter your marital situation, we can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.

Arizona law allows default judgments against recalcitrant spouses

m

Role of the attorney

A trained, experienced divorce attorney can help you in ways beyond the obvious protection of your rights during “dissolution of marriage” and ensuring that your paperwork–or your spouse’s papers, if you been served–is legally accurate and that the decree will be enforceable. Unfortunately, these are all serious areas of concern that you must address during a time of potentially profound emotional trauma.

Professional counseling

In fact, that emotional upheaval may be so painful as to require grief counseling: many people who have gone through divorce report feelings of loss so deep as to resemble that of experiencing a death in the family. A competent attorney can help with referrals to compatible grief counselors.

Addressing domestic violence: priority one

Another unfortunate aspect of divorce is domestic violence. In fact, that can be the driving force in recognizing the need to end the marriage. Because of the high risk of danger to spouses, children (and even pets), family experts and legal authorities advise anyone whose family equation includes domestic violence to make safety their first priority. In other words, if you’re in such a situation, you need to address it now. Your attorney can help in several ways:

• creating a safe exit strategy
• finding counseling
• securing emergency/temporary shelter
• filing restraining/protective orders.

Local & statewide resources

Additionally, here’s some statewide and local resources that can help:

• Maricopa County, Superior Court list: Abuse Counseling;
• A.A.R.D.V.A.R.C.’s page, Arizona: Domestic Violence Resources;
• My Sister’s Place (East Valley);
• Pathways;
• Safety planning.

Venue for filing

Because Chandler-area residents live in Maricopa County, the first office to become familiar with is the Clerk of Superior Court’s Office, which provides a list of fees for family court filings, plus a support page that lists addresses and other resource links, including Parent Resources.

Family Court is administered via the Superior Court; its intro to divorce page explains:

In Arizona, the legal name for a divorce is Dissolution of Marriage. The amount of time that takes to get a dissolution or divorce can vary from case to case. State laws require that you wait 60 days from the date of service before you can proceed with a divorce. After the 60 days from the date of service passes, the steps necessary to obtaining a divorce will greatly depend on your situation.

A divorce where the parties have been married for a relatively short period of time, have no children, and little property or debt can be less involved. A divorce where the parties have been married for a long period of time, where there are minor children, or where there is a significant amount of property or debt to be divided and the parties are in disagreement may take additional time.

If both parties agree to all issues within the case, the case may proceed by the parties filing a consent decree. If the Petition for Dissolution has been filed and served on the other party and a response has not filed within the allotted time period, the filing party may apply for a default [judgment].

The person filing for the divorce is called the Petitioner. The person responding to the divorce is called the Respondent.

Self-Service Center

The court also has an online Self-Service Center, which may be of value for those with very simple cases, for example, no children, no property, short history of marriage, and both parties agree to everything. Remember, court personnel can provide no legal advice but can be helpful with questions such as where to file? which forms to use?

Additional links

We also have related articles that may be of interest:

• Divorce in Arizona: Part 1
• Divorce in Arizona: Part 2
• Getting a divorce in Phoenix
• Getting a divorce in Tucson

Free evaluation

No matter your marital situation, we can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.

In Keystone State, balky spouse can drag feet for two years

m

We get questions

Perhaps not surprisingly for a blog about divorce, we receive lots of questions, and one of the most common is worded something along these lines:

Question:

I live in Pennsylvania and have followed the law the best I know how, but now that my spouse has received all the paperwork my spouse won’t sign them. What can I do to force [him/her] to sign, so we can move on?

Answer:

In a word, nothing.

Except wait.

Background: no default judgment in Pennsylvania

Unfortunately, unlike many states, Pennsylvania does not allow default judgment to terminate a marriage, according to Rule 1920.41:  “No judgment may be entered by default or on the pleadings.” That’s not quite as cut-and-dried as it sounds. Perhaps better worded, it might read “solely on the pleadings.” Let’s look at some other states for background.

Many states provide for a relatively quick route to default judgment

In states that provide for default judgment, the rationale is that no spouse should be “held hostage,” that is, to be forced to stay in an irretrievably broken relationship. Therefore, if the respondent (or defendant, in states where the filer of the petition is called the plaintiff) ignores the service of notification, the petitioner can file a motion with the court seeking a default judgment.

If the petition is properly executed and the service was properly delivered, the court will likely award default judgment, meaning the petitioner gets everything requested in the paperwork. Basically, most judges figure that if respondents/defendants are too lazy, disinterested or disdainful of court notices, they deserve what they asked for, which is nothing.

Default judgments can be set aside–for good reason

So, in states that allow default judgment, the time period for response to the original notification is relatively short (20 to 30 days, typically). In lieu of response, the default judgment is almost a slam-dunk. True, the respondent/defendant typically has a right to file a motion requesting that the default judgment be set aside (vacated)–but again, the window closes pretty quickly, and the reason needs to be strong. For instance, the respondent may prevail if the notification was served on another person by the same name and therefore the proper person did not, in fact, receive proper notice. In that case, the entire process will have to be re-booted, starting over from square one. Notice, however, that the court is likely to to take a poor view of someone who’s simply had a change of heart and now wants to contest the divorce.

Defendant can’t ignore the case indefinitely

Given all the preceding, it may seem that your spouse can, in fact, keep you trapped within the marriage. However, that’s not true–getting the decree simply takes longer in Pennsylvania. Although it’s true that having no initial response from the defendant is deemed by the court as a denial of the complaint, the defendant can not ignore the case forever.  After being separated for two years (24 months), the tables turn.

In other words, if the plaintiff cites irretrievable breakdown as the ground for divorce, and the 24-month requirement is met, the plaintiff may submit an affidavit to that effect. At that point, no response from the defendant is deemed to be admitted by the defendant, unless specifically denied via counter-affidavit. In lieu of response, the plaintiff may give the defendant 20 day’s notice and then file “Notice of Intention to Request Entry of Divorce Decree.”

Final answer, with caveats

So, the bottom line in Pennsylvania is that a recalcitrant spouse can drag out the proceedings, but not forever. See Pennsylvania Code, 1920.41, 1920.42, 1920.72 and 1920.73.

Related questions include other states and missing spouses

Question: What if move to another state, where separation requirements are not so long?

Question: What if I can’t locate my spouse at all?

The short answer is, yes, you can move to another state–even one where residency requirements are as short as several weeks. Having met residency requirements and filing legal papers and providing proper service, the court can grant the divorce but may not have any jurisdiction over your spouse, such as orders for property division or child support. Furthermore, Pennsylvania does allow divorce to proceed when one spouse can not be located, but the procedure must be strictly followed, and courts advise retaining an attorney.

If you find yourself in any of these three situations, your best bet really is to retain a competent, well versed divorce attorney.

Free evaluation

No matter your marital situation, we can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.

9th Judicial Circuit Court has helpful info & links

m

In Part 1, we discussed the role of the attorney and the idea of considering grief counseling, plus the need to urgently address domestic violence if that is part of your family equation. Today we’ll look at various requirements for filing and information about your local court.

Residency requirements

According Florida statute 62.021, “To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.” Military personnel who have been stationed in Florida for six months also qualify as Florida residents.

Some proof of residency will be required, most commonly a Florida driver’s license (or other state-issued ID) that’s at least six months’ old. In lieu of such ID, a third-party affidavit can suffice. For military personnel, evidence includes homeownership, vehicle registration and voter registration.

Venue

Circuit court is where “dissolution of marriage” is administered. However, unlike states in which a petition can be filed in the county where either spouse resides, the proper venue in Florida is the county in which the marriage is said to have become “irretrievably broken.” For example, you and your spouse realize the relationship has run its course and so one spouse moves away and relocates in another county. Regardless of who files the original petition, since you still live in Orange County, the proper venue is the Ninth Judicial Circuit Court (which also serves Osceola).

But let’s say the spouse that moved files in another circuit court. Is it automatically rejected? No–you (or your attorney, of course) must file a motion with the other court, either:

• to dismiss the case, or
• to transfer it to the ninth circuit court.

Without that motion, you will be deemed to have waived privilege for venue.

Family Court

Once on the circuit court’s site, you can access Family Court Case Management, which explains its role thusly:

The primary function of the “Family Court Services” (FCS) Department is to provide non-legal assistance to “pro se” parties who have filed for a divorce or a name change and to case manage those particular cases. Pursuant to Administrative Order 07-94-53, “pro se” petitioners in divorce and name change cases are required to have their initial paperwork stamped by the FCS prior to filing with the Domestic Clerk’s office. After filing, the case is assigned to one of FCS’s Court Specialists, who, under the direction of the staff attorney, then is available to assist the petitioner to the conclusion of his\her case.

This can be a great help, especially if you and your soon-to-be former spouse agree on everything such that you have an uncontested divorce. However, remember, help from court staff can NOT include actual legal advice.

If nothing else, read this

That being said, from that page, you can also find a link to an information brochure, What to Expect…Divorce in the Ninth Judicial Circuit Court of Florida.

This is a very good document. Regardless of whether you decide to hire an experienced attorney or attempt instead to try your luck as a pro se litigant, this e-brochure is a must-read. If nothing else, it will help you frame questions from the mindset of looking back on all this turmoil, years from now, when the anger and hurt has subsided. Surely, you, your spouse, and most important…your children…deserve some wisdom in a trying time.

Free evaluation

No matter your marital situation, we can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.