What is the “Divorce Default?”
By Jeff J Horn, Divorce Lawyer
What Is Divorce Default and What Can I Do If My Spouse Does Not Participate?
Divorce default occurs when your spouse fails to answer the divorce complaint. Your divorce complaint is docketed and served on your spouse, and 35 days pass without a response. Unfortunately, divorce default does not automatically mean you win the case – you still have to present evidence to the Family Court Judge to prove your case. This may include pay stubs, income tax returns, debt statements, bank and investment statements, pension and retirement accounts, and appraisals of assets such as vehicles, boats, and art.
You may also be able to receive legal fees from your spouse, depending on their income and assets. Reaching an agreement with your spouse may provide superior results than a divorce default, and the Family Court Judge‘s obligation is to confirm that the agreement was entered into voluntarily. However, beware – if your spouse wakes up and wants back into the case, the Family Court Judge may allow it. If this happens, use your advantage and press for the best deal you can.
What if my spouse does not participate? Divorce default occurs when your spouse fails to answer the divorce complaint. Your divorce complaint is docketed. Immediately, your divorce complaint is served on your spouse. Next, the clock starts ticking. (35) days pass. Surprisingly, your spouse failed to answer.
Divorce default – so I automatically win?
Painfully the answer is no. Divorce default means extra work for you. Similarly the Family Court Judge gets extra work as well. Nobody likes a divorce default.
Divorce default proof
It’s not fair. You have done everything correctly. Your spouse declines to participate. Of course, the judge needs proof.
Who has the burden of proof in a divorce default?
Oftentimes, critical information is in the hands of your spouse. But, you have to present it to the Family Court Judge.Even though you lack critical information, you have the burden of proof. Your evidence must be proof by a preponderance of the evidence. Thus you and your divorce lawyer have a lot of work to do.
Case Information Statement (CIS)
By rule, you will need a thorough case information statement. Link to the CIS.
Key elements of my Case Information Statement:
- Pay stubs
- Income tax returns
- Debt statements
- Bank and investment statements
- Pension and retirement accounts.
What else do you need in a divorce default?
Frequently, the marital home value is important to the Family Court Judge. Similarly, other assets may need appraisals such as vehicles, boats and unique pieces of art. Frustratingly, even though your spouse is absent, you need to do all the work.
Can I receive legal fees as part of a divorce default?
Finally, some good news. If there is ascertainable income and assets, your Family Court Judge can award your legal fees from your absent spouse. However, bad news there are no guarantees.
What is the superior option to divorce default?
Your spouse wakes up. The perception is you have the upper hand. Use the upper hand to apply pressure. Get your case fairly resolved. Amazingly, the burdens of proof in a divorce melt away when you and your spouse sign an agreement. The obligation of the Family Court Judge changes with the settlement. Contrary to the default mode, the judge needs only confirm that the agreement was entered into voluntarily. For the most part, divorce settlement agreements are the aggregation of a bunch of small agreements. Finally, small agreements require small proofs. Generally, reaching an agreement with a spouse in default provides superior results and finality.
One more divorce default trapdoor
Months after your spouse defaults you are moving forward. Your filing your proofs and your case information statement. Your lawyer has prepared you for testimony. Shockingly, your spouse wakes up. Maddeningly, the family court judge buys your spouse’s story.
Warning – Family Court judges promote settlement.
Settlement helps the entire divorce court system. Hence, family court judges will reopen a case for any semi believable reason. You will feel like you are back to square one. Despair not.
Strike while the iron is hot.
Your spouse is begging to get back into the case. Take this opportunity to make your best deal. Likely, your spouse will half to pay your legal fees to reopen the case. Take your advantage and press enter.
Divorce default in a nutshell
If you must proceed without your spouse, take your evidentiary obligations very seriously. Play to win. When your spouse wakes up and wants in, press your advantage.
Photo by Timon Studler on Unsplash