As a no-fault divorce state, Florida filers aren't required to provide a specific reason for the divorce. According to Florida divorce law 61.052, couples can seek a divorce with only irreconcilable differences as the cause. All that is required for a couple to file for divorce is an admission that there are irreconcilable differences in the marriage. When a petitioner files for divorce and their spouse is served, if there is no response to the petition within 20 calendar days of the request, the filer can ask for a default divorce to be entered in the case.
What You Need to Know About Default Divorce
Florida divorce law, like many other states, has a no-fault requirement for divorce. No-fault divorces make it possible for petitioners to file for a divorce without the need for evidence or reason besides irreconcilable differences. Default divorces are granted when the defendant doesn't respond to a divorce petition. Default divorces are available for filers with difficult or absent spouses unwilling to grant a divorce or participate in the process.
What Happens When My Case Falls into Default?
Essentially, a default divorce means you can be granted the request in your divorce petition without the defendant being involved. The court of jurisdiction will proceed with the divorce process, and the defaulted party will have forfeited any right to future notice of legal proceedings in the case. An attorney can help you file for your divorce and check your filing documents to ensure they meet all the requirements.
There are two types of default divorce:
- Clerk Default: Filers may receive a clerk default divorce if the defendant doesn't respond in any manner to a served divorce petition.
- Judicial Default: Filer may receive a judicial default divorce if the defendant has no defense to the claims in the petition.
Once the defendant defaults in the case, the court rules in the filer's favor, and the default claim is declared valid. The defendant will only have a chance to give testimony if a judicial default is issued and the judge requires notice of a hearing to give the defaulted party an opportunity to defend against the divorce.
Can I Overturn a Default Divorce?
A default divorce can be set aside, but it's a challenging process. Every case is different, so there isn't a hard and fast process for overturning a default divorce. Whether it can be set aside depends on the merits of your case. Successfully overturning a default divorce requires assistance from an attorney familiar with the process. It's difficult to set the judgment aside without great effort, excusable neglect, due diligence, and a meritorious defense.
Requirements for Setting Aside a Default Divorce
- Excusable Neglect: Excusable Neglect means there must be a legitimate reason for failure to respond within the time requirement on the summons. Common examples are medical claims, like hospital or emergency care situations. The reasoning is usually presented to the court by an attorney acting on behalf of the defendant.
- Meritorious Defense: Florida law has a specific requirement for meritorious defense. Like the neglected request, it needs to be drafted by a professional and presented as an affidavit or pleading in court.
- It would be difficult to draft a meritorious defense without legal assistance, and not securing assistance could result in refusal by the court to change the status of the case.
- Due Diligence: The defaulted party would need to accept their mistake and agree to cooperate with the default divorce going forward.
Florida Based Divorce Attorneys
If you are attempting to set aside a default divorce, don't leave the process to luck. The attorneys at Tinny, Meyer & Piccarreto, P.A., can help you formulate a strategy and complete the process. Call us at (727) 245-9009 to schedule a consultation.