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

By Beverly Bird
Judge, notes, gavel, the table

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In Florida, as in most other states, the court will issue a default judgment against your spouse if he doesn’t participate in your divorce proceedings. If he failed to respond to your divorce petition by not filing any answering paperwork and if he hasn’t turned up at hearings to defend his interests, a judge won’t make you stay married to him. But default divorce isn’t automatic -- you must file a motion asking for it.

When You Can File for Default Divorce

Under Florida law, your spouse has 20 days to respond to a divorce petition after you serve him with a copy of it. You can’t file a motion for default until this time has elapsed. The time frame can be longer if you don’t know where your spouse is and so you can’t have the sheriff or a private process server hand deliver a copy of the petition. In this case, you must file an additional motion, asking the judge for permission to serve your spouse by publication. If the court grants your request, you must then publish notice of your divorce in a newspaper for 30 days. The 20-day waiting period doesn’t begin running until after the final publication.

How to File Motion

Filing a motion for default involves completing Florida family law form 12.922(a), available on the state’s website. This is the motion form, but you’ll also have to fill out form 12.922(b), which is the actual default order that the judge will eventually sign. Take the completed paperwork to the clerk of the circuit court in the county where you filed your petition for divorce.

How to Schedule a Hearing

When you take your motion for default to the court, the clerk will sign it if everything is in order. Once the motion is signed, you can ask the court for a hearing date to end your marriage. In some counties, the court clerk can give you a date at the same time you file your paperwork, or you may have to call the family law intake staff for your county. When you have a date, you’ll need Florida family law form 12.923, Notice of Hearing. Complete and file this form with the court, then serve a copy on your spouse so he knows the date of the hearing and can appear before the judge if he wants to do so.

Possible Outcomes

The court will typically award whatever you asked for in your divorce petition if your spouse defaults -- he’s done nothing to indicate that this isn’t acceptable to him. But Florida law gives him an opportunity to object to this, even after you’ve received a judgment for divorce. He can complete and file Florida family law form 12.922(c) with the court. This is a request to set aside the default judgment. The judge won’t do this just because your spouse asks -- he must prove that he had a good reason for not responding to your paperwork or involving himself in the proceedings, such as that he was hospitalized or ill and couldn’t possibly have responded, or he was out of the country. If the court grants his request, your whole divorce litigation goes back to the beginning so your spouse can participate this time.

About the Author

Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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