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Divorce

What are Default Hearings?

In the practice of law, there are often situations where the other party fails or refuses to participate. This situation most commonly occurs in domestic relations law relative to other types of practices. While there are many reasons for the lack of participation, different courts will address this lack of involvement.

What If They Refuse?

Occasionally, judges and magistrates will offer an extended opportunity for a party to get on board and begin to participate. However, the court will expect the same level of performance from an attorney or an unrepresented party. This includes meeting the court’s deadlines, completing financial disclosures, and responding to pleadings.

When an opposing party does not respond to a petition, complaint, or motion, they are in default. As a case progresses forward, it is more and more difficult for a party in default to catch up. Simultaneously, the moving party has less time to acquire the information necessary to prepare for a hearing.

How Default Hearings Differ

Ultimately, when a party is in default, the court will set the matter for a default hearing. Rather than a one-half-day hearing, or even a full-day hearing, the court is more prone to set the matter for a 30-minute hearing. Where judges and magistrates differ, is on what will happen at the default hearing. Depending on the nature of the proceeding, the court may request that the moving party testify on the stand about what they want and why they want it. Therefore, your divorce attorney needs to be fully prepared, just as if it was a hotly contested hearing. Frankly, it takes a significant amount of time to prepare for testimony, create exhibits, and draft documents. Often, clients may be frustrated with the costs associated with trial preparation, especially when they know the other party will not show up for the final hearing.

This is especially the case when the court determines that because it is a default hearing that hearing the testimony of the party and reviewing exhibits is not necessary. Occasionally, the court will only request that your attorney provide the court with an offer of proof. An offer of evidence is when the attorney states to the court, what their client would say if they were to testify. While this is the most efficient use of the court’s time, it does often frustrate clients because they do not have the opportunity to speak and because those exhibit notebooks which were prepared for the court are not used. Although it does not change the outcome, it seems to the client that it is not an efficient use of their attorney’s time. Finally, after the hearing is complete, the court will generally require your attorney to draft a written form of the order of the court which comports with the court’s default order. This is an essential aspect of the process because the final order needs to be complete, accurate, and properly served on the party in default so that they have proper notice.

pros and cons of default divorce
pros and cons of default divorce

The Importance Of Due Process

Default hearings are not intended to penalize or disadvantage the absent party; rather, they are designed to uphold the principles of due process. Due process ensures that every individual has the right to be informed of legal actions against them and the opportunity to present their side of the case before a judgment is made. Default hearings serve as a safeguard to this principle. They provide a mechanism for the case to move forward even when one party is unresponsive, preventing cases from stalling indefinitely due to non-participation.

Initiating A Default Hearing

The process of initiating a default hearing in family law cases typically involves the following steps:

1. Filing The Initial Petition: The petitioner (the party who initiates the legal action) files an initial petition outlining their claims, demands, and the relief sought from the court.

2. Serving The Defendant: The defendant (the party being sued) must be properly served with a copy of the petition and a summons, which notifies them of the legal action and the need to respond within a certain timeframe.

3. Response Deadline: The defendant is given a specific period, often dictated by local rules, to respond to the petitioner’s claims. This response is usually submitted in the form of an answer or counter-petition.

4. Failure To Respond: If the defendant fails to respond within the stipulated timeframe, the petitioner can request the court to schedule a default hearing.

5. Default Hearing Process: During the default hearing, the petitioner presents their case, providing evidence to support their claims. The judge evaluates the evidence and considers the petitioner’s arguments.

6. Judgment: During the default hearing, the petitioner presents their case, providing evidence to support their claims. The judge evaluates the evidence and considers the petitioner’s arguments.

Setting Aside Default Judgements

In cases where a default judgment has been entered against a party, there is typically an opportunity for the defaulting party to request that the judgment be set aside. This is often done by demonstrating valid reasons for their failure to respond, such as a lack of proper service, a mistake, or other extenuating circumstances. If the court finds these reasons credible, it may grant the request and reopen the case, allowing the absent party to participate and present their side of the story.

Modern Family Law

Modern Family Law’s team of experienced family law attorneys takes a compassionate approach to the practice of family law. Using innovative technology to create an effective and efficient process for our clientele, our attorneys approach each case as a collective effort to find the best long-term solutions for each family. Our attorneys currently practice in Colorado, California, and Texas. Click the following link to view all of our family law locations. For more information please give us a call or fill out a short form online to sign up for a free consultation today! Let us make a positive difference in your life.

(Updated for 2023‎) ‎ ‎ ‎ ‎ ‎ ‎ ‎ BY: MFL Team

Posted August 14, 2023


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