Default Divorce

Default Divorce in New Jersey

A “default divorce” can have a number of different meanings depending upon the situation. Most commonly, a default divorce is a divorce matter where the other party has been properly served with a Complaint for Divorce and has failed to file a responsive pleading with the Court within 35 days thereafter. “Proper service” usually means the other party has been personally served the Complaint for Divorce by a private process server or the county Sheriff’s Office, although there are other forms of service which can be utilized if personal service of the Complaint cannot be made.

After 35 days have passed, the party that filed the Complaint for Divorce (the Plaintiff) can file a Request to Enter Default with the Family Court. In this document, the Plaintiff would indicate on what date the non-responding party (the Defendant) was served with the Complaint. Usually attached to the Request to Enter Default would be an Affidavit of Service from the process server or Sheriff, verifying on what date the Defendant was actually served. The Request to Enter Default would also state that 35 days have passed since proper service, with the Defendant failing to enter a responsive pleading to the Complaint. An Affidavit of Non-Military Service is usually also filed with the Request to Enter Default. In this form, the Plaintiff represents that the Defendant is not on active military duty. (If the Defendant is on active military duty, this may potentially delay or otherwise complicate your divorce matter.) Once the Court receives these documents, a Court date is usually scheduled within a few weeks for what is known as a “Default hearing.” On this Court date, assuming all documents have been prepared, filed, and served correctly, the Court will most likely grant the Plaintiff a Final Judgment of Divorce, which terminates the marriage.

If the Plaintiff is seeking relief from the Court other than a simple dissolution of the marriage, such as alimony, child support, equitable distribution, or a Judgment addressing issues of custody and parenting time, the Plaintiff must file, in addition to the document set forth above, a document called a Notice of Proposed Final Judgment, which will specify the relief sought. (NJ Court Rule 5:5-10) Attached to the Notice of Proposed Final Judgment will be a completed Case Information Statement, which is a financial disclosure form where the Plaintiff will, among other things, itemize all assets and liabilities of the parties and set forth proof of present income. The Defendant must be served with the Notice of Proposed Final Judgment at least 20 days in advance of any hearing date set by the Court. As a practical matter, your attorney will almost always call the Court in advance to schedule a Default date so that the date can be inserted into the Notice of Proposed Final Judgment before it is served on the Defendant.

The 2013 case of Clementi v. Clementi, 434 N.J. Super 529 addressed the procedure which the Judge must follow when one party fails to appear. Most importantly, all litigants should understand that just because one party has failed to appear does NOT necessarily mean that the Plaintiff is entitled to retain all or substantially all of the marital assets while leaving the other party with all debts accumulated during the marriage. The Plaintiff must still meet his or her obligation to persuade the Court, by a preponderance of the evidence, that the requests for equitable distribution are fair and equitable under the specific facts of the case. The Court must still analyze and apply the factors set forth in New Jersey’s equitable distribution statute, which include but are not limited to the length of the marriage, standard of living established during the marriage, and the income and earning capacity of each party. As part of the Court’s overall analysis, however, it may still consider, as one factor, the Defendant’s failure to appear or object to Plaintiff’s proposed distribution.

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