Ins and outs of the default judgment
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
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
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.
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.
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