I am going to do my best to explain this without getting all lawyer on you. (If I do, I promise just a little).
A court proceeding, whatever it may be, is initiated when someone files a Complaint. A Complaint is a very specific document. (In the case of a divorce, that would be a Complaint for Divorce). The person who files the Complaint is referred to as the “Plaintiff.”
When someone files a Complaint, the other person named in the Complaint (referred to as the “Defendant”) is required to acknowledge that Complaint by filing something in response to it. It’s not important, but if you are curious, the various responses could be an Answer, an Answer & Counterclaim, an Acknowledgment or a Notice of Appearance. These mean different things, but for our purposes here all you need to know is that if the other person does not file any of these to acknowledge the proceeding, that is when we get into default territory. A default simply means that the Defendant is not participating and the show is going to go on with or without him (or her).
So how do you know when you are a default case? In New Jersey, the Defendant has 35 days from the date he or she was formally served with the Complaint to file a response. If he/she does not do that, then the Plaintiff can inform the court, “Hey, Defendant didn’t file a response! Let’s move this along.” The way that you do that is by filing a document called a “Request To Enter Default.” There are some technical requirements that I won’t go into here.
You or your attorney will file these papers with the court and wait for the court to schedule a court date for a Default Hearing. So, what happens at the Default Hearing? The judge assigned to your case will have to determine an appropriate outcome to your case on all issues. Those issues could include: custody and parenting time, child support, alimony, equitable distribution and counsel fees. Ordinarily, in a normal proceeding, you and your spouse would spend a lot of time negotiating these things trying to reach an agreement, but since your spouse isn’t participating, you get the pleasure of going before the judge and having him or her decide these issues.
That said, you get to submit a proposal to the judge before your court date on how he/she should decide all of these issues. You can’t just ask for whatever you want though. You have to demonstrate that your requests are fair and reasonable under the circumstances, because the judge must decide an outcome that is fair and reasonable based upon the law. You don’t just get to keep everything because your spouse didn’t show up to the party.
The way you (or your attorneys) do this is by preparing a proposed Final Judgment of Divorce, along with some other papers, detailing a suggested outcome and submitting any evidence to support your requests. These materials are required to be filed with the court at least 24 days before the court date, and they also have to be served on the Defendant 24 days in advance as well.
The Defendant, if he or she shows up, will only be permitted to participate in a very limited fashion, since he/she didn’t respond to your Complaint. They can object to what you are asking for and explain why they think it’s not fair, but they cannot submit any of their own evidence. It would be kind of like playing baseball with one arm tied behind your back.
This may seem to you like a slam dunk, but there can be some complications. The primary complication is that sometimes when the Defendant gets notice of the Default Hearing, they suddenly decide they want to participate. The Defendant can then make a motion to the court to request that the Default be set aside. These are liberally granted and it basically sets the clock back at zero, sort of like you are starting from the beginning. So, the Defendant will get to file a response to the Complaint and you will do things the way you should have done them the first time around. It’s very frustrating when this happens to the Plaintiff, because by this time, you’ve already spent a lot of money on attorney’s fees and time waiting to get your proceeding going. This is an unfortunate reality in many divorce cases and one that attorneys can’t do much about.
If your spouse doesn’t show up though, you or your attorney will present your case, the judge will consider your proposed outcome and make a final decision on all issues. The judge will enter a Final Judgment of Divorce and you will officially be divorced.
Just one little caveat before you celebrate. There is still the possibility that even when the judge enters a Final Judgment, your spouse can still make a motion to set aside the Judgment and start from square one. These are not as liberally granted though, but still a possibility.
If you are going through a Default, or have any questions about this process, we can help you. Our attorneys have extensive experience navigating clients through this process. Call our office to schedule a Client Vision Meeting or schedule one right here.