Yesterday, we discussed what happens when the other party fails to respond to a petition for divorce. The petitioner will eventually make a motion for a default judgment, and barring something unforeseen, the court will grant that request so it can clear the case from its docket.
So what happens if you’re on the other side of that equation? What are your options?
First, it depends on if you were actually served. Once a party is served a petition for divorce, he or she will have 20 days to respond. If you cannot respond within that timeframe or if you are procuring an attorney, the court will usually grant a request for an extension.
However, even if you haven’t been granted an extension, you can still attempt to file an answer if you are outside of the 20-day window. Unless the court has already granted the motion for default judgment, the court will generally allow the filing, especially if there is a good reason for the delay.
If the petitioner has taken the first step toward a default judgment by filing a Motion for Clerk’s Default, you can’t just file an answer. You’ll have to make a motion to set aside the default.
At the hearing on this motion, you will have to show that there is a good reason for your motion. Yet, courts generally don’t want to adjudicate a matter without all parties present, so they’re inclined to set aside the default.
There are three requirements for setting aside a default.
The first hurdle to clear is that the failure to respond was due to something beyond the respondent’s control. This is called excusable neglect. A typical situation includes hospitalizations and debilitating illnesses.
Next, you must show you have a “meritorious defense.” This only means that you have a reasonable chance of winning an issue. Considering all of the moving parts in a divorce (property division, child custody issues, alimony, etc.), this isn’t a difficult requirement to satisfy.
Lastly, you must show that you didn’t delay in acting once you learned of the default.
Of course, now you’ll have to deal with the actual issues of the divorce. The Men’s Divorce Law Firm has made family law its focus and can guide you through the different paths. Call 321-DIVORCE today to set up an appointment.