To Default Or Not?

So you’ve made the decision to get divorced.  It hasn’t been an easy decision to make.  You’ve hired an attorney and filed your Complaint.  You wait for your spouse to respond.  Nothing.  One month later; still nothing.  Another month; more nothing.  In the meantime, you are living together in misery.  Bills aren’t getting paid.  The money is slowly drying up if it isn’t already gone.

You go to your lawyer and ask, “What can we do? I want this over with already.”  And the discussion of default begins here.

The above scenario is more common than one would expect.  Either your spouse doesn’t want the divorce or has decided to make the experience as miserable as possible for you.  Either way, nothing gets done and the clock keeps ticking.  Once a Complaint for Divorce is filed, the court system is on notice that you exist and that you are asking for its help.  If certain things don’t happen by certain deadlines, the court will dismiss your case.  That means you have to start all over again.  That means more $$.

You cannot force your spouse to stay married to you indefinitely.  Failing to respond to a divorce Complaint and the attached legal proceedings doesn’t stop them from happening.  Rather, it only gives you the opportunity not to participate in this legal part of your own life.

The Rules of Court allow one party to file what has been known as a request to enter default against a non-participating party (R. 5:5-10).  The recent published Appellate Division decision of Clementi v. Clementi serves as a good reminder of the parameters that govern a request for default.  When filing a request for default, you must file  a notice of proposed judgment along with a detailed Case Information Statement with the court.   The notice of proposed judgment tells the court what your proposal is for an outcome of the issues in your case, i.e. equitable distribution of assets and debts, alimony, child support, etc.  Clementi reminds us that just because you ask for it and the other side doesn’t dispute it or respond, doesn’t mean it should automatically be granted.  The court still has a duty to review the request through the eyes of equity and review the relevant statutory factors and case law, as applicable, before making its decision.  Simply because one party hasn’t objected to the notice of proposed judgment or shown up at the subsequent hearing (a required piece of the puzzle for a default judgment to be entered) doesn’t mean the other party automatically gets what it wants.  The ultimate decision has to be fair to both parties in light of that case’s specific facts.

In addition, when discussing the option of default, keep in mind that even after a request to enter default is entered, and usually up until the date of the plenary hearing, a judge is likely to give your spouse the opportunity to participate in the proceedings if they so file a formal request to dismiss the default or show up at the plenary hearing.  The farther along in the process you are, the more difficult and the more restrictions your spouse faces, however it is still a viable option.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.