Default Divorce in Florida
June 8, 2015
Divorce is a stressful time, and can be made even more stressful if your spouse does not cooperate in the divorce process. Fortunately, if your spouse will not respond to your petition for divorce, or if you cannot find your spouse, the court will not make you stay married to him or her. Instead, you can obtain a default divorce, which allows you to get divorced without requiring your spouse’s input. But default divorces do not occur automatically—you have to petition the court to grant you one.
In order to get a default divorce, the petitioning spouse asks the court to grant the divorce if the other spouse does not respond to the petition for divorce by filing an answer in court. The first step is for the petitioning spouse to serve the other spouse with notice of the petition for divorce. The other spouse then has twenty calendar days to respond.
If the petitioning spouse cannot locate the other spouse, he or she must ask the court to be allowed to use service by publication. Service by publication means publishing notice of the petition in the legal section of a local newspaper. The notice must circulate for at least thirty consecutive days, and the twenty-day waiting period begins after the end of the thirty days of publication.
If the other spouse does not respond by filing or serving documents within that twenty day period, the petitioning spouse may ask the court to enter a default against him or her. The petitioner must fill out the default forms, which the court clerk signs if they are in order.
Then there will be a hearing, at which the judge considers the petition for default. The petitioning spouse must send notice of the hearing to the other spouse. At the hearing, the petitioner must show that at least one of the spouses has been a resident of Florida for at least the six months prior to filing.
The court usually awards the petitioning spouse what he or she asks for in the divorce petition. This may result in the defaulting spouse losing out on property division or other issues because the spouse was not present to argue his or her case to the judge.
Setting Aside Default Divorces
It is not preferable to resolve a divorce case by default, so Florida law provides for a way to set the default divorce judgment aside. The defaulting spouse files a motion to set aside the default, in which he or she must show good reasons for not responding to the petition for divorce, e.g. hospitalization or travel outside the country. If the motion is granted, the couple must start the divorce litigation from the beginning.
The advice of a dedicated attorney is essential in a divorce, especially if you are having trouble with getting your spouse to cooperate. If you are considering a divorce, please contact the experienced West Palm Beach family law attorney William Wallshein for a free initial consultation.