The Dangers of Defaulting in a Divorce

Every divorce begins with the filing of a petition for dissolution of marriage that must be served on the other spouse.  When served, the spouse actually receives a copy of the petition and a summons that sets out a duty to respond within 30 days or risk going into default.  What exactly is default?  And does it matter?

Default is the failure to file an answer to the petition for dissolution.  If that happens, the filing spouse can place the case on the default docket, where the court will issue an order to appear to the other spouse.  If the spouse fails to appear, the court has the ability to enter a default judgment – a full and final disposition of the case without ever hearing from the other spouse.  A default judgment will almost always grant the filing spouse whatever relief sought in the petition, and it is just as valid and binding as a judgment entered when the other spouse appears.

The theory behind a default judgment is straightforward – the courts do not want a party seeking a divorce to be held in limbo for months or years just because the other spouse never files a response or appears in court.

At the same time, the appellate courts do not like default judgments and have made it easy to set them aside.  A party against whom a default judgment is entered may subsequently move to set aside the judgment if the party shows good cause and a meritorious defense.  Because of the disfavor of default judgments, courts are encouraged to set aside a default judgment – but there are limits.

The Western District discussed one of these limits last week in Lee v. Lee.  In this case, wife and husband separated; wife remained in Missouri and husband relocated to Louisiana.  Wife filed for divorce and served husband in Louisiana.  Husband acknowledged receiving service and looking at the petition but “setting it aside.”  Over two months passed, and wife set the matter for a default hearing.  Husband acknowledged receiving the notice and looking at the notice but setting it aside.  Husband did not appear at the default hearing; the court entered judgment for wife, granting her sole legal and physical custody of the minor child and giving husband only supervised visitation.  When husband received the judgment, he consulted an attorney and moved to set aside the judgment.  Husband argued that he could not read and had little education and that was the basis for his good cause defense.  The trial court and the Western District both found this insufficient in the context of the case.  It seems that husband had his relatives help him read documents, including the actual default judgment.  The court reasoned that if husband knew to consult his relatives to read the judgment, he should have known to do the same when he originally received the summons and the notice of default hearing.  The selective failure to act constituted an intentional interference with the judicial process and negated any good cause excuse.  The Western District upheld the denial of the motion to set aside.

The Lee case is a cautionary tale.  While courts do often set aside default judgments for various reasons, the failure to answer and appear carry great risks and you could end up like the husband in Lee – stuck with a terrible outcome.  Whenever you receive a summons and notice to appear, at least show up in court – and even better, consult and retain an attorney.

If you have questions about a default judgment, contact us – we can help.