Default is a concept that is mostly used in the finance field, where it describes failure to honor some financial obligations within a stipulated time. In Divorce cases, the term has similar usage where it denotes a party’s failure to respond, appear or defend their case.
Just like in finance sector, default in a divorce or family court case attracts some actions which affect both the plaintiff and defendant. For the defendant, failure to respond can lead to court making decision about children and marital property without being granted an opportunity to defend a case. What this means is that the case will be decided based on the facts and arguments that were presented by the person who filed for divorce.
For the party who filed for the divorce, failure of the case proceeding to conclusion and at a pace that satisfies can be painful both financially and emotionally. A case can drag when the other party fails to take an action as required, that is, respond to the complaint through filing their case in writing. To prevent the case dragging and taking longer than needed, especially due to non response on the defendant side, you can request for a default divorce. The law requires the person filing for divorce to serve the spouse through delivering the papers personally or through mail. If the period lapses without filing an answer, that is 21 days for personal service and 28 days if the party was served through mail, then the plaintiff can plead with the court to enter default divorce.
Prior to January 1, 2015 default was automatically entered once the defendant failed to file an answer within the stipulated timelines, however a change of law requires the plaintiff to first file a motion explaining the facts and proposed judgment clearly detailing the terms. On the same note, the plaintiff needs to set a date for hearing. A default will be deemed entered once the court official gets and files the papers but a hearing has to happen for the divorce terms to be final.
While on this, it is important to remember that proof of serving need to be provided as well as an indication that the defendant did not respond. Also the defendant should be served with all copies of documents which are filed with the court including the default divorce documents.
The case will not automatically accept the proposed judgment but will be reviewed on merit. The judge will look at the terms for fairness, equity as well as conformity with the requirements of divorce laws in Michigan.
For the motion to be set aside, the defendant can file a motion requesting for the default judgment to be abandoned and get a chance to participate. However, the defendant has to file an answer to be allowed. Also participation will be as court deems fit, one may be allowed to participate in limited hearings.
Familiarizing yourself with default divorce in Michigan allows you to know what need to be done leading to an effective and satisfactory process. To learn more about divorce please contact us and we will be glad to assist.