What Is a Motion for Default in a Divorce Case in Florida?

By Teo Spengler - Updated July 24, 2018
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It takes two to tango and also two to litigate. One party files the initial papers, the other person responds to them – then the real work of pulling together evidence and resolving issues begins. But when the person doesn't respond, the spouse filing the petition can ask the court for a default judgment, based on the petition. This is true in every state and every type of case in which one party doesn't respond, including a failure to respond to a divorce petition in Florida.

Tip

A party brings a motion for default in a divorce case in Florida when the other spouse fails to file a response to the petition. The court can enter a default judgment, based on the petitioner's facts.

Default Divorce in Florida

If you could stall a case by simply deciding not to respond when you get served with the papers, the justice system would rapidly come to a standstill. That's why state laws mandate a response within a given period of time, often 20 days. If the party misses the deadline, the other can ask the court to declare a default. In many cases, this opens the door to a default judgment.

This is certainly what can happen in Florida in divorce court. A divorce petition is personally served on the other spouse, which means that someone, often a paid process server, hands the papers to the spouse. If that spouse doesn't file a response within 20 days from the day of service, the spouse bringing the lawsuit can ask the court to enter a default.

Motion for Default in Florida

Once your spouse has been served with the divorce paperwork in Florida and the 20-day period has passed, you can file a motion for default. The motion form is Florida Family Law Form 12.922(a) while the order form, which you are asking the judge to sign, is form 12.922(b). You can find these forms online at the court website. You'll need to enter information on the forms, including the Florida case number, the names of both spouses and the name of the county circuit court where the petition was filed.

Once the paperwork is completed and in order, the clerk of the appropriate Florida circuit court signs it for you. You then can schedule a final hearing in your divorce case. You must notify your spouse of the date of the hearing, using the appropriate Florida family law form, 12.923.

If your spouse doesn't show up at the hearing, the court may ask you some questions, but ultimately will likely grant you what you sought in your petition. This can be termed an order of default divorce.

But a default divorce in Florida is not entirely final. Your spouse can ask the court to toss out the default judgment, using form 12.922(c). If your spouse presents a reasonable explanation of why he failed to respond to the divorce petition, the court may set aside the default judgment. But ignorance of the law or carelessness won't likely be enough.

About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Spengler splits her time between the French Basque Country and Northern California.

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