Last month we talked about two of the different types of dissolution proceedings available in Florida here and here. This month we are going to continue that discussion with another type of dissolution available.
The four types of dissolution available are:
– a Simplified Dissolution of Marriage
– an Uncontested Dissolution
– a Default Dissolution
– a Contested Dissolution
We previously discussed the first two, Simplified and Uncontested. Today we are talking about default dissolutions.
The initial steps taken in any dissolution proceeding are the same – you must have your attorney file the Petition for Dissolution of Marriage. In Florida there are court approved forms which must be used in dissolution proceedings. Which specific form is filed depends on your circumstances: (1) with children, (2) with no children but owning property, or (3) with no children and no property. Your attorney will know which one to use. Then notice must be given to the other side, which means they are served with the Petition. If they have been personally served, they have 20 days to respond. (how to proceed if you have no idea where your spouse might be is discussed below) What happens next depends on whether or not your spouse responds. Let’s start with the least complicated first – they have been personally served and fail to respond to your petition by filing an answer within the 20 days.
If your spouse (or their attorney) has not filed an answer to your petition within the 20 days your attorney can file a Motion for a Default and get a court date for the final hearing. You must send the other side a Notice of Hearing giving the date, time and location of the final hearing. If they do not show up for the hearing, your attorney has a Default Judgment order ready for the clerk to sign. The clerk of the court will make sure the paperwork complies with the requirements, and can sign the default judgment.
If there are children involved, then the petitioner must also file the appropriate child-related documents, such as the Child Support Guidelines (if requesting child support) with the court before requesting the default judgment.
Who Knows Where My Spouse Might Be?
Default divorces can be appropriate in those unfortunate instances where one spouse has taken off and the petitioning spouse has no idea where they may be living. This makes personal service impossible, but it does not mean you cannot obtain the default dissolution.
If you have no idea where they are, there are special rules regarding what type of service of process is acceptable. It is possible to give constructive notice, or notice by publication. This requires that you publish the notice in the legal notices section of a Florida newspaper where the spouse was known to live for 32 straight days. If the notice to the other spouse is by publication, then the time limit to respond is extended to the time stated in the published notice, usually no more than 60 days.
However, this type of service is only allowed after you have conducted a “diligent search” to locate the missing spouse. Some of the things you must do are contact former employers, relatives of the spouse, check social media, phone directories, DMV records etc. You must also file with the court a special form called the Affidavit of Diligent Search & Inquiry that sets out the measures you have taken to find the spouse, and swears you have been unable to locate them. If the spouse lives out of state, the court may require that the publication notice be in the local paper of their last known whereabouts.
“Default” may not mean it’s over
Even if you have been granted a default judgment it may not be completely over. Something known as a Motion to Vacate the default judgment, if granted by the judge, can set aside that default and open up the matter again. In divorce proceedings, depending on the circumstances, these are often granted quite liberally if there are children involved, or there is property to divide.
The person moving to vacate the default judgment must show that there is a good reason they did not respond or appear at the final hearing. If it appears that an unfair result occurred, and there was a justifiable reason, then judge may grant the motion to vacate. This means the dissolution is set aside, and the (previously) defaulting spouse may respond and participate in the proceeding.
Not As Easy As It Sounds
Some additional words of caution – there are very strict rules regarding what steps must be taken if the other spouse is in the military or cannot be found. You really need a good family law attorney to ensure that all the proper steps are taken; otherwise you can waste time and money. If the default is set aside on motion, it is like starting at the beginning of the divorce. Make sure you have experienced legal counsel in attempting a default dissolution.