The Default Divorce - FamilyEducation

The Default Divorce

This article defines "default divorce" and describes its pros and cons.

Some spouses never answer the divorce papers they receive. They just don't care, or they figure they'll let you do all the work to get the divorce (maybe the way it was in the marriage). Do you have to wait until your spouse responds before you can move ahead?

Usually not. If you can prove that your spouse personally received the papers the law requires you to have served, you can probably get a divorce on default—your spouse's failure to respond. Although, by law, your spouse might have had 20 or 30 days to respond to the divorce papers before you are entitled to a default judgment, your judge might want you to wait three months before actually submitting the rest of the papers you need to be granted a divorce, just in case your spouse decides to respond after all.

There are some downsides to a default divorce:

  • In some jurisdictions, your spouse can open the default within one year of its being granted if he or she can show “good cause” why it should be opened. That means your spouse can march into court and claim she never got the papers, or was sick at the time, or didn't understand them, and she wants a second chance. If the judge agrees that there is a reason to open the default, he will, and your divorce will in effect have to start all over again.
  • People tend to follow agreements more than they follow orders. If you and your spouse negotiated an agreement, the chances are better that your spouse will abide by it than if a judge set down in an order what your spouse has to pay because he didn't come to court.
  • You might actually do better if your spouse shows up in court. Maybe you can't prove how much money she earns, but if she were there, your lawyer could cross-examine her in such a way as to let the judge know that the tax return does not reflect all her income.
  • The judge might refer certain issues to another judge, such as a special referee or master, thereby prolonging the amount of time it will take to get the case over with. Maybe the judge wants to give your spouse another chance to show up, so he refers the support hearing to another judge and tells you to notify your spouse about the new date. It's not fair, but courts tend to try to ensure that everyone has his day in court, even when the person who's getting the second chance is the defaulting party.

If you think you can settle and avoid litigation, it is in your best interest to make that settlement happen. Remember, the only winners in a protracted litigation are the lawyers! Judges in a trial will often try to give something to each party in the divorce, thereby imposing a form of settlement. Why not work out the issues yourselves? You and your spouse know better than anyone what's most important to each of you. If your marriage is at an end, orchestrate its conclusion in the least expensive, most expeditious way possible. Compromise where you feel comfortable—and weigh the cost of waging an all-out war. Push your pride and hard stance aside, but don't give up what's most important to you.