If you are served a petition for divorce and neglect to respond to the court, your divorce could receive a default.
A common question asked by clients going through a Florida divorce is what a motion for default is and why it matters to their Florida divorce. When a Florida spouse files for divorce in Florida, they are viewed as a Petitioner who must file a Petition for Dissolution of Marriage. The other spouse, known legally as the Respondent, has 20 days to file an Answer to the petition. This is where a default becomes applicable.
Should a respondent fail to answer within 20 days, the original Petitioner is legally permitted to file a Motion for Default. The motion provides courts with the knowledge that the Petitioner alleges the Respondent has not filed an answer within the deadline. A court clerk will look into the matter and enter an Order of Default once it is verified that the Respondent did not answer.
After the default is granted, Respondents are then unable to object to any of the terms in the original Petition for Dissolution of Marriage. The general takeaway of defaults is that all Florida Respondents should answer the petition in a timely manner to protect their legal rights. Otherwise, Petitioners will request a final hearing after the default motion is granted, which essential means a judge will grant the divorce requests within the petition.
However, Florida law does permit one exception to this general rule. When children are involved, defaults must be set aside. In the case of Barnett v. Barnett, the court noted that Florida has long held to the rule that child custody should be decided based on the best interests of the children, not a parent’s default. In the case, it was decided that the entirety of the final divorce judgment need not be discarded based on the parent’s default. Rather, only the portion of the judgment addressing the children must be set aside.
Still, even in the Barnett case, it is clear that a default is rarely, if ever, in the best interests of the Respondent. Sometimes, however, a Respondent may have a legal defense as to why they failed to respond in a timely manner. In the Barnett case, the legal defense of excusable neglect was raised, which means there was some reason the Respondent did not file their answer in a timely manner.
In general, family law judges do not like to dissolve marriages based on a procedural technicality. As such, Florida has a strong presumption toward allowing defendants relief from default, particularly if the Respondent:
- Meets the excusable neglect standard
- Exercised due diligence to obtain relief from default (finding a Florida family law attorney, submitting proper documentation, etc.)
- Raises a defense against default that raises issues of fact (known as meritorious defense)
If you have questions regarding divorce, or are unaware as to the terms and conditions in, talk to, and retain, a family law attorney who can help. Contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at firstname.lastname@example.org