Family Law

What to Do If Your Spouse Doesn't Answer the Divorce Petition

By Joseph Pandolfi, Retired Judge
Learn more about the default divorce process.

Once a spouse is served with a divorce petition, the next step is to answer it. If your spouse ignores your divorce complaint, you can ask a court to issue a default judgment.

Requesting a Default

"Default" is the legal term to describe the failure to respond to a lawsuit, including a divorce petition or complaint. In the divorce context, if you serve your spouse with a divorce complaint, and it goes unanswered, you can ask a judge to grant your divorce by default. To accomplish this, you'll need to prepare and file an affidavit with the court, to prove that you served the petition, and your spouse failed to respond. Once you show these two things, a judge can issue a default judgment, which may include all of the orders you requested, such as orders for alimony, child support, and property: If your spouse failed to respond to your requests, the judge will have no basis to deny them.

Once the court receives your request for a default, it will set a hearing date. At the hearing, you'll need to present your case.

Requirements in a Default Hearing

Depending on your state's laws, you'll probably have to let your spouse know about the default hearing. In New Jersey, for example, you have to legally notify your spouse of the hearing date and provide the details of your requests for spousal support (alimony), child support, child custody, and marital property.

Default or not, a judge is going to expect you to prove your case. Let's say your reason (grounds) for the divorce is fault based, such as your spouse's physical or mental cruelty. You'll have to provide at least some evidence to back up your claim. If you can't, the court may not grant the divorce.

Even if you based your case on "no-fault" grounds, such as a separation for a continuous period (usually a year or so), you'll have to prove that you were living apart for that time. Although you'll still need to show some evidence at the default hearing, it will be far easier than if you were appearing at a full-blown divorce trial.

Even When You Think It's Over--It Might Not Be

So you've had your default hearing, you proved your case to the judge's satisfaction, and you joyously walked out of court with the written divorce judgment clutched close to your heart. But a few weeks later, you get a letter stating that your spouse wants to reopen the case (vacate or set aside the default). Although you can't imagine any judge would let that happen, they often do.

Rest assured, a judge isn't going to automatically give your spouse another bite at the apple. Your spouse will need to provide a very compelling reason for the court to reopen the case. A claim of "I just forgot" or "the dog ate my copy of the petition" isn't going to cut it.

However, what would be sufficient is a situation in which a spouse never actually received the petition. Maybe the individual who served the document gave it to the wrong person or claimed the petition was delivered, when it actually wasn't: It's not common, but it happens. Another example could be where the spouse was sick or injured and was literally unable to answer the petition in the allotted time. But even in these situations, states have specific deadlines for spouses to make set aside requests. If a request to vacate a default judgment isn't filed on time, a judge is unlikely to grant it.

If you have questions about a default divorce judgment, you should contact a local family law attorney.

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