Default Judgments - Clementi v. Clementi

One of the most frustrating parts of a divorce case can be the waiting. You have to wait to get the papers drawn up, wait to have them served, wait for the other spouse to file a response, wait for a court hearing, and so on. When the other spouse is not cooperating and is refusing to file a response, it can feel like the waiting draws out forever. However, New Jersey has a procedure to move a divorce along even if the defendant is refusing to respond. This is called a default judgment. A default judgment can be sought where the defendant has been properly served, but has not responded within thirty-five days. The plaintiff then has to file a request for default, and must serve the defendant with a detailed case statement and list of proposed final orders at least twenty days before the default hearing, according to New Jersey Rule 5:5-10. In the case of Clementi v. Clementi, a judge discussed the requirements a plaintiff must fulfill at the default hearing.

In that case, the defendant was properly served, but failed to respond. The plaintiff then filed for a notice of default, as well as a case statement and a proposed division of assets. The defendant did not appear at the default hearing and did not file anything in opposition of the entry of the judgment. At the default hearing, the plaintiff wife requested that she be fully awarded the parties’ marital residence, which was the parties’ largest asset. The residence was valued at approximately $200,000 and was not encumbered by a mortgage.

The court noted that it was the wife’s burden of proof to demonstrate by a preponderance of the evidence that her proposed distribution of assets was in line with the equitable distribution guidelines set out in New Jersey statutes. The court determined that even though the husband did not appear and did not oppose the awarding of the entire marital residence to the wife, this did not bar the court from conducting its typical inquiry into whether the proposed distribution was equitable. It was up to the wife to provide evidence at the default hearing to show that her proposed award was in line with the factors laid out in New Jersey 2A:34-23.1. The court stated that during a default hearing, the court may make determinations based on the evidence presented by the plaintiff, may analyze the statutory factors, and the lack of a response by the defendant. The court was not to speculate on what the defendant’s evidence may have been had he appeared and participated in the trial. However, the court was also not to treat a defendant’s failure to respond as a tacit agreement. The court accordingly determined that a hearing must be held for the wife to present evidence that showed her proposal conformed to New Jersey law.

Default judgments can be a way to bring your divorce to a swift conclusion, but it is essential that all of the strict requirement be observed. Call us today at (732) 529-6937 to talk about your case and whether default may be appropriate.

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