Uncontested Divorce By Default: What You Need To Know
What do I do if my spouse ignores my Complaint for Divorce in NJ? Can I still get a divorce or am I stuck?
One of the worst feelings is dragging yourself through the emotional turmoil of filing for divorce…only to have your spouse ignore the complaint and refuse to answer.
Sometimes, spouses wrongly feel that a divorce proceeding can’t happen if they aren’t willing to participate. Thankfully, for the divorce-seeking spouse, that isn’t the case.
If you want to get a divorce and your spouse does not (refuses to participate) or does not answer your Complaint for Divorce (refuses to respond), you have an option called Uncontested Divorce by Default.
In NJ, an Uncontested Divorce by default simply means that the “other party” (your spouse) was properly served with your Complaint for Divorce and failed to file a response with the Court within 35 days of service.
Essentially, this process is a tool for the requesting spouse to move forward with a divorce proceeding even if the other spouse refuses to participate or ignores the request. This means you are not trapped in limbo if your spouse tries to stonewall the proceeding.
Now, divorce by default isn’t always a bad thing either.
Spouses that amicably move forward in their divorce, and mutually agree to a Settlement Agreement, would also have an Uncontested Divorce by Default. In their case, the “uncontested” part actually means they aren’t going to contest the details of the divorce.
Since many spouses find themselves in the first situation instead of the second, let’s look at the more difficult one.
Table of Contents
How does it work?
First, let’s look at the steps:
- Serve a copy of your filed Complaint for Divorce on your spouse.
- If after 35 days, your spouse does not formally respond to the Complaint, you may file a Request to Enter Default.
- The Court will then schedule your case for a Default Hearing. If there is no signed Settlement Agreement, then at least 20 days prior to the scheduled court date, you must file a Proposed Form of Final Judgment and serve it on your spouse.
The process for triggering a Divorce by Default is the same as any other NJ Divorce…filing a Complaint for Divorce with the Court.
Where this process begins to diverge is that your soon-to-be-ex-spouse refuses to file a responsive pleading within a 35-day window of being served with your Complaint. “Served”, meaning they received your complaint by way of a private process server or county Sheriff’s Office, in most cases.
So, once your spouse has been officially served and did not file a responsive pleading within 35 days of that service, you can move on to Step 2…
File a Request to Enter Default
The Request to Enter Default (in the case of a non-responsive spouse) is essentially a request that tells the court that you have filed for divorce, your spouse was properly served, and there was no response.
You are asking for permission to forge ahead with the divorce, despite your spouses lack of cooperation.
As part of this request, the Court will need an Affidavit of Service, which is a form filled out by the process server indicating who, when, and how your spouse was served. This is to establish the 35-day window for the responsive pleading.
Typically, the Court will also require a form called an Affidavit of Non-Military Service, which informs the court that your spouse is not active-duty military. Military life being what it is, an active-duty spouse may potentially delay the proceeding or complicate the matter.
If all your documents are in line…on to step three…
Schedule for Default Hearing
After all your documents are prepared and filed, and all the right steps have been followed, the Court will schedule you for a Default Hearing. Typically, this can occur within a few weeks but there are no guarantees on timelines.
During this hearing, if your divorce is simple with no complications or demands, the Court will most likely grant you a Final Judgement of Divorce and your marriage will be officially terminated.
There is an important caveat to this process:
If you are seeking relief in the form of alimony, child support, equitable distribution, etc. then you also have to file a Notice of Proposed Final Judgement which outlines exactly what you are seeking, before your scheduled Default Hearing.
Your soon-to-be-ex-spouse will need to be served this notice at least 20 days in advance of your scheduled hearing.
Do I have to appear in court?
If you and your spouse do not have a Settlement Agreement (as in, the non-responsive spouse), then yes, you do have to appear in Court for your scheduled hearing date.
For those who have a signed Settlement Agreement (the amicable split), it depends on the county in which you live. If the Family Court in your county permits default divorces “on the papers” (without a hearing), it will simply be a matter of completing and submitting an additional Certification. If the Family Court in your county requires an appearance, regardless of whether you have a signed Agreement or not, then you must appear.
What can I expect at a default divorce hearing?
If you are the plaintiff and you do not have a signed Settlement Agreement, and you are seeking some type of relief, you will have to go through your Proposed Final Judgment, on the record.
That means you will have to show the Judge that the relief you requested is reasonable in light of the specific facts of your case, assets accumulated, liabilities incurred, and other factors. In other words, you have to show the Judge that what you are asking is fair, given your circumstances.
If the Judge finds that your requested relief is not reasonable, he or she may deny your request or significantly reduce it. If your spouse shows up that day, or you are the Defendant, you are not allowed to testify and/or present any evidence to rebut the Plaintiff’s testimony.
The most you are permitted to do is cross-examine the Plaintiff’s testimony.
A default hearing is a serious matter and it is always best to be represented by counsel, whether you are the Plaintiff or Defendant.