Divorce by Default: When a Spouse Fails to Respond to Divorce Papers

Divorce by default might be necessary if one party fails to respond to the divorce petition within the deadline. Essentially, default is an easy court victory that allows the person seeking divorce to finish their case without the other party. The default order also prohibits the respondent from taking any other actions in the divorce case, including presenting evidence, witnesses, or arguments.

To obtain a divorce by default, you must file a motion for default with the clerk of the superior court and schedule a court hearing to present your case to the judge or court commissioner. However, you must first wait at least 90 days after the divorce papers were served to your spouse. If you served your spouse by publication or certified mail, you might need to wait longer than 90 days. You should consult with an experienced divorce attorney if you have questions about the 90-day waiting period.

After the 90-day waiting period, you need to check if the other party filed a response to the petition. Your spouse is supposed to send you a copy of any response they file, so if you don’t receive one, you need to ask the clerk’s office if one has been filed. If the other party failed to file a response, you can go ahead and file a motion for default and schedule a hearing.

If your spouse does not come to the hearing, ask the judge to sign an order on the motion for default and your other final papers such as the final divorce order, parenting plan, child support order, or restraining order. If your spouse shows up at the hearing, the judge most likely will not sign an order on a motion for default or final papers. However, you can ask the judge to set a deadline for your spouse to file a response so you have time to secure an attorney to assist with your case.

If you have questions about divorce by default or responding to a divorce petition you received, contact the divorce lawyers at McKinley Irvin to schedule a consultation.