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Can You Get a Default Divorce If You Have Minor Children?


It is only natural to want to avoid doing unpleasant tasks, and divorce is one of the most unpleasant experiences a person can go through.  Ignoring the fact that your spouse is divorcing you will not make the divorce case go away.  The court can still finalize your divorce, although if you refuse to participate in the divorce proceedings, the court will simply finalize the divorce on your ex-spouse’s terms without any input from you.  A divorce where only one spouse is ever in contact with the court, and the other spouse never responds, is called a default divorce.  The defaulting party in a default divorce case still has rights, though, including the right to parenting time with his or her minor children.  If you think that the divorce court that entered a default judgment against you has treated you unfairly, contact a Boca Raton divorce lawyer.

How Default Divorce Works

The divorce process begins when one spouse files a divorce petition, and then a process server delivers a copy of the petition to the other spouse; this is called serving your spouse with divorce papers.  The only cases where the divorce can proceed without formally serving one of the spouses with divorce papers are uncontested divorces where both spouses file the divorce petition together and both indicate to the court that they have read the petition for uncontested divorce.  All divorces except the most amicable ones are contested.

In Florida, the task of serving divorce papers, that is, the role of the process server, falls to the sheriff’s office in the county where the non-petitioning spouse resides.  The deputies must make every effort to serve the papers in person, although they can deliver them in some other way, such as by taping them to the door of your spouse’s house, if this is the only option.  If your spouse does not file a response to your divorce petition within five weeks, you can ask the court to issue a default judgment finalizing your divorce.  If the court does this, it grants all of the requests you made in your divorce petition.

Default Decisions by the Court Are Not in the Best Interests of Children

Case law contains instances where family courts have issued default judgments in divorce cases where the parties had minor children together, but this is no longer the practice followed by Florida courts.  If your spouse is trying to get a default divorce from you, or even if the court has already finalized the divorce by default, you still have the right to request or modify a parenting plan.  In parenting plans, the courts prioritize the best interests of children; your children still have the right to a stable relationship with you, even if you did not respond to your ex-spouse’s divorce petition in time to avoid a default judgment on property division issues.

Contact Schwartz | White About Default Divorce

A South Florida family law attorney can help you if your spouse has not responded to your divorce petition.  Contact Schwartz | White in Boca Raton, Florida about your case.




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