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What is a default divorce? · Family Law Talk

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  Speaker 1: Welcome to Family Law Talk.
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  Speaker 2: Family Law Talk.
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  Speaker 1: Presented by Kirk Stangy of Stangy Law Firm DC. Stangy
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  Law Firm is a multi state.
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  Speaker 2: Family law firm.
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  Speaker 1: Now here's your host, Kirk Stangy.
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  Speaker 2: Welcome to Family Law Talk. We have an interesting topic today.
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  The topic is what is a default divorce? And this
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  is based on an article on our blog Divorce Lawyers
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  Saint Louismo dot com dated October eighteenth, twenty twenty three,
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  and the title of that article is what is a
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  default divorce in Saint Louis. So as a follow up
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  to the episode today, going over to that blog and
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  read the article titled what is a default divorce in
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  Saint Louis. But let's go ahead and jump jump into
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  the topic today. Obviously, a contentious divorce can be troublesome
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  and nobody wants it. Certainly a separation can be difficult
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  lots of instances as well, particularly cases where maybe there's
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  been fighting or arguing taking place at home, or maybe
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  it's a situation where one party wants the divorce and
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  another party doesn't want it. Maybe they think the marriage
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  is still savable or something in that regard. All right,
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  So then jump into the topic of what's a default
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  divorce will look. Oftentimes, a divorce begins where one party
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  files that divorce. They file the paperwork to get the
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  process going, and then what they attempt to do is
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  serve the papers on their spouse. Sometimes, again a spouse
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  doesn't want a divorce, maybe they don't want to accept
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  the papers. So oftentimes service can be waived. But let's
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  say a party refuses to do that, they refuse to
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  wave service. Then what ends up happening is a share
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  for special process server actually has to serve those papers
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  on the other party. Sometimes that can be easy, sometimes
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  that can be difficult. It just depends papers. Divorce papers
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  could be served at home, they could be served at work.
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  Let's say they could be served at other locations as well,
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  and that can be easier if a person has a
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  pattern of going to the same place. And certainly special
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  process servers who are not sheriffs, so they're not employees
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  of a county but they're private will oftentimes engage in
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  greater efforts to obtain service, and so they might go
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  to other locations to attempt to serve the papers. But
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  let's say they serve the other party the papers, so
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  they find them, they give the papers to the other party.
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  Then the issue that's out there is then the party
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  who's been served they have to respond, so they have
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  to file responsive pleadings. Obviously, this is going to vary
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  based on the laws in a particular state, so there
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  can be different nuances. But typically a party's got to
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  file any answer to the divorce petition. Let's say, they
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  oftentimes file a counter petition for divorce if they want
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  it to, maybe a counter petition for legal separation if
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  they're separated and they don't want to be divorced. And
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  then they file other paperwork as well, typically financial statements
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  and if there's kids, a proposed parenting plan and whatnot.
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  But there's a timeline to do this, okay, And again
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  the laws are going to vary by the state that
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  a party's in, but in the state of Missouri, the
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  timeline is thirty days, So it's thirty days to file
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  these responsive pleadings with the court. And what ends up
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  happening in some cases is a party kind of puts
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  their head in the sand, okay, so they don't hire
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  an attorney, they don't file their responsive pleadings within the
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  thirty days even though they were served. Maybe they just
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  act like they weren't served. For whatever reason, they've got
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  their head figuratively in the sand. Maybe an individual doesn't
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  understand the timelines, and certainly in some circumstances, parties can
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  maybe procrastinate or be overwhelmed and they just don't do
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  what they need to do to get the answer and
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  the responsive pleading filed within the thirty days. So when
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  that had happens, then what that does. It gives the
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  ability of the party who filed the case and served
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  the papers on the other party the ability to file
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  what's called the motion for default. And the motion for
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  default would again typically state, hey, the party the other
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  party was served on xt date, the timeline has passed
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  for them filing their responsive pleadings, and maybe the court
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  has not granted an extension. So in theory a party
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  can come in on day twenty nine and thirty and
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  ask for more time. Courts oftentimes will liberally give some
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  extra time to party. But let's say they don't do anything,
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  they don't request extra time, they don't file anything in
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  the thirty days have passed. Again, motion for default gets filed.
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  Is the typical move and then the attorney notices the
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  motion for default for hearing and again notifies the party
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  who's been served of the hearing dates. So typically it
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  provides a copy of it. It could be through the mail,
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  or could be through electronic means like email, but they
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  provide a of the motion for default to the other party.
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  There's a hearing date, and then the motion for default
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  is heard, and so then the question a lot of
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  parties have is, well, what happens at the default hearing?
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  And there's really a couple options. I mean, option one
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  is the party who filed for divorce shows up with
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  their attorney, let's say, and let's say the other party
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  doesn't show up, they're just not there. That's possibility one.
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  Possibility two as a party who was served comes to
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  court and maybe they come to court with an attorney,
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  or maybe they come to court by themselves, but they
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  come to court, and that would be scenario two. And
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  within scenario two, maybe they come to court and they
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  still don't have the paperwork right, they come by themselves,
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  they still haven't filed their responsive pleadings, or maybe they
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  come to court and they have their responsive pleadings in hand,
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  and maybe they request leave from the court to file
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  their answer out of time. Okay, so these are your
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  two scenarios. Under scenario two, if they show up and
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  they've got their respect of pleadings and they request additional time,
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  I mean, typically a judge is gonna give a person
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  a little bit more time to do that. Now, if
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  they're egregiously past due and maybe they've had one extension already,
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  then maybe not. But if this is the first time,
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  oftentimes they'll give more time. And if there's kids involved,
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  then a court is typically more inclined to give more
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  time because default judgments involving kids and child custodly custody,
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  I should say, are typically disfavored. Okay, but then take
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  scenario one. Let's say a party doesn't show up. They've
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  been served their past due default judgment, motion has been filed,
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  it's been noticed for hearing, they don't show up to court.
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  Let's say they do not appear at the court house.
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  Then typically the court proceeds on the motion for default,
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  and typically the motion will be granted. Again, there could
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  be some reason why the judge doesn't do it, and
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  this isn't an absolute, but generally speaking, the court will
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  grant the default judgment unless there's some reason not to,
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  you know, maybe there's improper service here, or maybe there's
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  some other concern, let's say. But if the court grants
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  the default judgment, then what ends up happening is the
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  default divorce is granted, so the parties are divorced, and
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  then the party who filed the case and serve the party,
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  I mean, typically they get what they want. So whatever
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  it is they're asking for in terms of the disposition
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  of the case, they typically get it. So in terms
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  of the division of marital property and debt, what it
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  is they want, if they're the only ones there, they
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  get it. In terms of child custody, if they're the
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  only ones there, typically they get the child custody award
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  they're looking for. In terms of child support and spousal support,
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  whatever their request is, typically they get it. And so
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  in analogy I've used with clients for years is thick forfeit.
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  You know, if there was a sports game that was
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  taking place, one team shows up, the other team doesn't
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  show up, right, the team that doesn't show up typically
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  gets the loss right they forfeited the game. Here, if
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  a party doesn't answer, they don't file their responsive pleadings,
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  they don't show up to court to try to get
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  more time or file their responsive pleadings. Typically things don't
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  turn out well for them. So look, a big moral
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  to the story here is don't do this. If you've
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  been served papers, get a lawyer, make sure you filed
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  what you need to file in the case so you
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  don't end up in default. I mean, ending up in
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  default is a very very bad thing and not something
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  most parties want to have happened to them. Okay, the
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  results are typically worse than what it would be if
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  an individual hired a lawyer and did what they needed
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  to do. All right. More in fall on this topic,
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  a lot of parties ask, well, how long does it
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  take to get a default divorce? Again, now this is
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  going to very based on case and locality, but again
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  the divorce has to be filed and then the other
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  party has to be served, and then the time has
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  to elapse. Missouri's thirty days. Other states have different time frames,
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  so you have to wait for that time to lapse,
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  and then you have to notice the default judgment motion
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  for hearing, and typically you have to give notice of that,
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  and that's going to vary based on state. Could be
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  seven days in Missouri. Other states it could be a
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  different time frame. And so, look, it's gonna take some
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  time even at default divorce, I mean sixty days ninety days,
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  it's going to vary, but maybe somewhere in that range
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  would be kind of a best case scenario. And of course,
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  it depends on the judge's docket. How busy is the judge.
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  The more busy a judge is, the more clogged up
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  their docket, this might take longer. The less clogged up
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  a judge's docket might be, then you know, it could
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  be the less time. So it's it's gonna vary. If
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  a party, you know, is ultimately defaulted on a divorce
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  and let's say after the fact, they're not happy with
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  this and they're not happy with the result and they
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  want to do something about it, lots of individuals ask,
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  well what do I do? Then, well, you've got to
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  hire a lawyer and file a motion to set aside
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  the default judgment. And the quicker somebody does that, the better.
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  And again, the timelines on that is going to vary
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  based on state, and courts can be more lenient on
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  setting aside to fault judgments based on the cause the
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  reasons like why didn't the person respond? Was there good reasons?
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  Where they're not good reasons. And then if there's kids involved,
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  courts are typically more likely to set aside a default
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  judgment if there's kids involved versus if there's not kids involved. Okay,
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  So that can make a big, big, big big difference
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  there in terms of default judgments. Okay, But again, at
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  the end of the day, if you've been served divorce papers,
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  it's important to hire a lawyer in file responsive pleadings,
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  even if you want the divorce, I mean, in terms
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  of the disposition, you need to file an answer responsive
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  pleadings to make sure the result is fair and just
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  and something you can live with. It's very very very
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  very important in terms of what happens after a default
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  judgment is entered. Again, I mean, the party who has
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  a favorable terms has the ability to enforce the terms
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  of the default judgment, so maybe collecting child supporter or
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  spousal supporter, getting the property that was awarded to them
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  and enforcing the chaun Cussey decision. And so again, somebody
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  wants to set aside a default judgment, the sooner the
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  better is really, really really important in terms of these
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  default judgments. All right, well, this is the topic at
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  hand and I've really covered what it is I wanted
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  to cover today, So again, as a follow up to
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  the episode, go on over to our blog Divorce Lawyers
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  Saint Louismo dot com and read the article titled what
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  is a default divorce in Saint Louis for more information
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  on this topic. But thanks for tuning in today, stay
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  tuned to our next episode of Family Law Talk coming up.
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  Thank you very much.
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  Speaker 1: Thank you for listening to Family Law Talk with Kirk Stangy.
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