Default divorce occurs when one spouse files for divorce but the other does not participate in the proceeding. When a spouse files for divorce, the other has a certain number of days to respond. If there is no response, the petitioning spouse files for a default decree and usually receives any requested relief, as there is no objection. Requirements differ from state to state, but generally the non-responsive spouse may appeal the default within six months if he did not receive proper notice of the original proceeding.
Research the reasons your state allows appeal of default and verify that appeal is permissible in your situation. States are fairly uniform in allowing appeal only if you were not properly served with notice of the original proceeding or if entry was due to fraud, mistake or excusable neglect on your part. An example of excusable neglect might be extreme illness that prevented you from participating in the proceeding.
Note the date of entry of the default decree and verify you are within your state's statute of limitations for appeal. Most states allow appeal of default within six months of entry. After the appeal time expires, the decree is final and cannot be appealed.
Draft a motion to vacate the default decree. Ask the court clerk for a form formatted for your jurisdiction. Alternatively, draft your own. Copy the top portion of the default decree that reflects the state, circuit and court names, case and division numbers and names of the spouses. Title it Motion to Set Aside Default Judgment. In the body tell the court that you are within the statute of limitations for appeal and state the reason you feel appeal is appropriate. Sign the motion before a notary and file it with the court clerk.
Determine your state's requirements for notifying your former spouse of the motion. Usually it is sufficient to deliver, or serve, a copy by mail, fax or by hand. Choose a method of service and serve the other spouse with the motion. If your former spouse was represented in the proceeding by an attorney, serve the attorney.
Draft a Certificate of Service stating how the Motion to Set Aside Default was delivered to your former spouse -- by hand, mail or fax. Sign the Certificate of Service and file it with the court clerk.
Wait the required number of days for your former spouse to respond. Generally, states allow 20 or 30 days to respond to a motion. After the response time expires, contact the court clerk or assigned judge's assistant for a hearing date.
Prepare for your hearing. It is your responsibility to prove to the court the appropriateness of setting aside the default by offering personal testimony, relevant witness testimony and presentation of any documents that support your Motion to Set Aside Default. Determine if you are required by your state to send your former spouse a list of any witnesses and copies of any documents you intend to present at hearing. If so, deliver the information to your former spouse or her attorney the required number of days before the hearing.
Attend the hearing and present your testimony, witnesses and documents to the judge. Be prepared to answer questions, either from the judge or your spouse's attorney. Your former spouse presents her side after your turn. The judge then decides whether or not to set aside the default.
- Court of Appeals, Thirteenth District of Texas: Gonzalas v. Gonzalas, No. 13-03-00299-CV
- Law Offices of J. Douglas Barics: Changing New York Judgments and Judgments: J. Douglas Barics, 2008
- Tennessee Court of Appeals: McClannahan v. McClannahan, No. M2010-02061-COA-R3-CV, March 28, 2012
- Clark County Courts: Explanation of a Motion to Set Aside an Order or Judgment
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