Florida is commonly referred to as a no-fault divorce state. Under Florida divorce law, you don’t need to prove adultery or other reasons for a divorce. See Florida divorce law 61.052. All Florida law requires is there be irreconcilable differences to obtain a divorce. Further, a divorce can be granted in as little as 20 calendar days, if no response to the case is filed.
If you have received notice of a divorce or child custody case, it is crucial to respond quickly and correctly. When a party does not respond to a petition, a default divorce can be entered. Typically, when served with a Florida divorce petition, there are only 20 days to file a response. If a response is not filed on time, the petitioner (person filing the case) can request a default divorce be entered against the other party. Default divorce judgments can be helpful, but are not right for every case. If you need legal advice, you should contact a divorce attorney in Tampa for a consultation.
Default Divorce in Florida
If a response is not filed within 20 calendar days of being served the petition, a default may be entered. If a default is entered, the case can continue without participation by the defaulted party. Moreover, the Court can enter the default without even conducting a hearing on the matter. If the Court enters a default, the defendant/ respondent will not have an opportunity to contest the merits case or raise defenses. See Residential v. Rector. Moreover, if you have been defaulted, you may not even be entitled to notice of future court hearings or other activity. See Florida Family Law Rules of Procedure.
Clerk Default Divorce vs. Judicial Default Divorce
Under Florida law, there are two types of default: clerk and judicial. Clerk default occurs when a party fails to respond in any form to the petition. The second category of default, judicial default, occurs when a party fails to plead or defend against the claims. A party can plead or defend claims against them at any time before a default is entered against them. Conversely, once the default is entered, the defaulted party is deemed to have waived their defenses. The defaulted party is now treated as having admitted all the allegations. See State Farm v. Horkheimer.
A clerk’s default can be entered without even a hearing or notice to the other party. On the other hand, a judicial default generally requires a hearing and notice of the hearing to be sent. At the hearing for a judicial default divorce, the party will have an opportunity to persuade the judge not to enter the default divorce.
How to Overturn a Default Divorce in Florida
After default has been entered, judicial, or clerk, it is possible to have the default set aside. See Federal Rule of Civil Procedure. However, the requirements to set aside a default can be very difficult to satisfy without the assistance of a Tampa divorce lawyer. Every case is different, and the likelihood of success will depend on the circumstances of each case. If you have questions about a specific case, you should contact a divorce law firm for assistance.
Generally, Florida divorce law requires three elements to be shown to set aside default judgment; excusable neglect, a meritorious defense, and due diligence. Failure by the defendant to prove all of these elements will result in the default being upheld. See Schwartz v. Business Cards Tomorrow, Inc. If the default is not vacated, the defendant will be treated as admitting all of the plaintiff’s allegations and be barred from raising defenses to the lawsuit.
Excusable Neglect
To successfully have a default set aside, a defendant must first show there was excusable neglect. Excusable neglect means there was a legitimate reason for the failure to answer the summons within 20 days. Lack of knowledge of the law or rules is not excusable neglect. Common examples of excusable neglect include a major life emergency, hospital stay, or illness that interfered with answering the summons on time. See Elliot v. Aurora Loan Services.
Meritorious Defense
The second requirement to overturn a default divorce in Florida is to allege a meritorious defense properly. For the defense to meet the requirement, it must be made in a pleading or affidavit. See Yelvington Transport, Inc. v. Hersman. For assistance with drafting a formal pleading or affidavit for your meritorious defense, contact a divorce attorney in Tampa for legal counsel.
Due Diligence
Lastly, to set aside a default divorce in Florida, the defendant must show they acted with due diligence in responding quickly after learning the default had been entered. Again, because there is no bright-line rule for determining if default may be set aside, the facts of each case play an important role. For this reason, it is essential to consult an experienced attorney. There is no one size fits all approach for analyzing due diligence in default cases.
Limitations for a Default Divorce in Florida
A default divorce in Florida can be helpful, but it may not resolve all the issues in your case. There are limitations on the type of relief you can receive in a default divorce in Florida. For more information about Florida divorce laws concerning a default, contact a Tampa divorce lawyer for assistance.
Tampa Divorce Law Firm
Going through a divorce or custody battle can be a highly stressful and emotional experience. It is vital to have a divorce attorney at your side who is knowledgeable of the law and can aggressively defend your rights. We invite you to call us today to schedule a free consultation with an attorney at our firm. During your consultation, you will discover why so many people in the Tampa Bay Area turn to us for help with their legal needs. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A., can help. Call us today at (800) 990-7763 or fill out the “free case review” form on our website for more information.
Frequently Asked Questions
Florida is a “no fault” state, therefore; you won’t have to provide evidence of adultery or abuse for a divorce. Florida law only requires you to allege the marriage is irretrievably broken.
Yes, Florida does allow for service by publication (newspaper). However, publication is a last resort for service under Florida law. Therefore, you will have to attempt to locate and serve your spouse before proceeding with service by publication.
No, Florida does not require your spouse to sign the divorce papers. However, if you are unable to personally serve your spouse with the divorce papers, you may need to do service by publication.
You can still obtain a divorce in Florida if you do not know where your spouse is. If you are unable to personally serve your spouse, you may be able to serve by publication (newspaper) instead.
A default divorce is when the other party (respondent) does not file any response to the divorce petition. Generally, the spouse will have 20 calendar days after being served the divorce papers to file a response. If the response is not timely filed, you may proceed towards a default divorce.
If a response is not filed within 20 calendar days of being served the petition a default may be entered. If a default is entered the case can continue without participation by the defaulted party. Moreover, the Court can enter the default without even having a hearing on the matter.
