The Michigan legislature changed its rules for default judgment divorce effective January 1, 2015. The new rules make the default process a bit more complicated, but the end result is much the same: If you default, the court can make decisions about your children and your marital property without giving you a chance to express your wishes or opinions.
A Michigan court can order a default judgment of divorce when one spouse doesn’t participate in the proceedings.
Default Divorce in Michigan
A default divorce in Michigan is one in which the defendant – the spouse who didn’t file for divorce – takes no action to “enter” the case after it’s been started when the plaintiff files and serves a complaint for divorce. She doesn’t respond to the divorce complaint by filing an answer to it in writing. This effectively tells the court she doesn’t care what happens next.
Technically, either a divorce plaintiff or defendant can request default if the other party stops participating in the case. In most cases, however, the plaintiff requests default when the defendant doesn’t respond to the initial complaint.
Michigan Rules for Answering Complaints
Michigan law allows the plaintiff in a divorce case to serve the defendant with a copy of the complaint by having someone personally hand him the papers –personal service – or by U.S. mail.
In the case of personal service, he has 21 days to file an answer with the court. If he received the complaint by mail or if he resides outside the state of Michigan, he has 28 days. If he does nothing within these time periods, the plaintiff can then request that the court enter his default on the court record.
Michigan Rules for Default
Under the legislation effective 2015, default is no longer automatically entered against the defendant if he doesn’t respond to the complaint or if he fails to appear in court for the default hearing – even if he consents to the default.
The plaintiff must first file a motion with the court, including a sworn affidavit that explains the facts of the case and a proposed judgment of divorce detailing the terms she wants. She must also schedule a default divorce hearing. Default is technically entered at the time the court clerk receives and files this paperwork, but the terms of the divorce aren’t final until a hearing takes place.
The affidavit must include proof that the defendant did indeed receive a copy of the divorce complaint and that he failed to plead or otherwise defend himself in the divorce case. The plaintiff must also make sure that the defendant receives a copy of this motion and the accompanying paperwork, including the date of the scheduled hearing. She must file "proof of service” with the court, explaining in writing and under oath how her spouse received the affidavit, the supporting documents and notice of the hearing. In fact, the defendant must receive a copy of every single document filed with the court so far in the divorce case.
The plaintiff must do all this at least 14 days before the scheduled hearing.
The Default Judgment of Divorce
The court won’t just automatically rubber-stamp the plaintiff’s proposed judgment of divorce at the default hearing. The judge will review it and must find that its terms are fair and equitable and that they meet all requirements set by Michigan law. This is the case even if the defendant doesn’t bother to show up at the default divorce hearing.
Motion to Set Aside Default
All isn’t necessarily lost if default is entered against a spouse. He can file a motion with the court asking that the default judgment be set aside so he can participate in the case, but he can’t participate until he has filed this motion. This rule depends on the discretion of the court, however. A judge might allow him to participate in limited proceedings, such as to engage in the "discovery" process to exchange information with the plaintiff while his request to set aside default is being considered.
A defaulted spouse can also attend the default hearing and plead his case in person to have the default set aside at that time. A spouse can ask the court to set aside a default divorce judgment even after it’s final, but he has only 21 days to do so after the judgment becomes a matter of court record.