In Michigan and elsewhere, a default judgment is what happens when one spouse doesn’t participate in a divorce. The law doesn’t force you to remain married if your spouse doesn’t cooperate with the proceedings. You can move forward and get your divorce without her. The process is just a little different.
Regardless of your spouse’s participation or lack of it, you must file a complaint for divorce to initiate divorce proceedings. In the complaint, you’ll give your reasons for wanting to end the marriage and you’ll tell the court exactly how you want to do that. For example, if you have children, you might want custody. If you own property together or have shared debts, you’ll need to tell the court how you want to distribute those things between you. If you want child support, this is the time to mention it. If your spouse fails to respond, your divorce proceedings will move along more smoothly if you explain everything you want at the beginning of your case.
After you have filed your complaint for divorce, you’ll have to give it to your spouse in such a way that you can confirm she received it. Michigan law allows options on how to do this. You can hire a private process server, or you can give her the complaint yourself. Michigan law requires that you attach a summons form to your complaint, which the court clerk can give you at the time you file it. If you give your spouse your complaint yourself, court rules require that you have her sign the back of the summons. You can also forward her the complaint by certified mail.
Entering the Default
If you or a process server gave your spouse the complaint personally, she has 21 days within which to file an answer with the court. If you mailed it to her, she has 28 days. If she does nothing by the end of this time period, you can file a default request with the court. You cannot ask for a default judgment if the your spouse is an active member of the United States military. You’re also required to give a copy of the request to your spouse.
The Default Judgment
Michigan has a waiting period before the court will finalize your divorce. If you have children, the waiting period is six months. If you don’t, it’s two months. Once the appropriate amount of time has passed from the day you served your spouse with your complaint, you can submit a default judgment to the court for signature. A default judgment is the same as a divorce decree, itemizing all the terms of your divorce. Your terms would be everything you originally listed in your complaint; you generally can't list anything new at this point. As long as your terms don’t fly in the face of Michigan’s laws, you'll next appear in court, and a judge will sign your judgment. This turns it into a court order that becomes your final divorce decree.
Between the time you file your default request and the end of your waiting period, Michigan allows your spouse to petition the court, asking to set your default aside. Generally, she would have to prove a good reason for failing to respond to your divorce complaint, such as that she was incapacitated during those 21 or 28 days. As a general rule, courts prefer that both spouses are involved in the divorce process, so if your spouse makes such a request to the court and has a legitimate reason for failing to respond to your complaint, the judge will probably set aside your default. Your divorce would then proceed along normal channels.
References & Resources
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