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 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 the 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.

Modern Family Law

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