After being served with a summons/ petition for divorce, the defendant has 20 calendar days to respond. See Florida Rules of Civil Procedure. The summons serves to notify the defendant they are being sued and need to defend themselves to the court. There are two types of default that may be entered, Clerk’s Default or Judicial Default. Failure by the defendant to respond within 20 days may result in a clerk or judicial default judgment being entered against them. Therefore, you may be able move forward with a default divorce in Florida if the other party does not respond timely to the divorce case. For assistance with a default divorce in Florida contact a Tampa divorce lawyer.
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 skilled Tampa divorce lawyer. Further, each case is different and the facts of each case play an important role in determining if a default can be set aside. Therefore, you should consult with a divorce attorney in Tampa for more information about your specific case.
Generally, Florida divorce law requires three elements be shown in order to set aside default judgment; excusable neglect, 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 by the law as admitting all of the plaintiff’s allegations and be barred from raising defenses to the lawsuit.
In order 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 an illness or psychological condition if the condition clearly interfered with the defendant’s ability to answer the summons on time. See Elliot v. Aurora Loan Services.
How to Overturn a Default Divorce in Florida With a Meritorious Defense
The second requirement to overturn a default divorce in Florida is to properly allege a meritorious defense. In order 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.
Lastly, in order to have default divorce in Florida set aside, a defendant must show they used due diligence in responding quickly when they learned 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 important to consult an experienced attorney.
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 divorce in Florida contact a Tampa divorce lawyer for assistance.
Tampa Divorce Law Firm
If you have been served with a lawsuit, such as a divorce petition or any other type of lawsuit contact Florida Law Advisers, a Tampa divorce law firm to speak with a divorce lawyer in Tampa. Every case is different, and our vast experience allows us to cater our services to each client’s individual situation. We offer a free initial consultation and flexible payment options. To speak with a Tampa divorce lawyer call us today at 800 990 7763, we are available 24/7.