What Is a Motion for Default in a Divorce Case in Florida?

By Anna Assad

A motion for default in a Florida divorce case allows the person who filed the divorce petition, the "petitioner," to ask the court to grant her petition when the other spouse, or respondent, has failed to file an answer in court. Typically, the respondent "answers" the divorce petition by confirming or disputing the facts and terms set out in it. If the respondent doesn't file an answer, the motion for default lets the petitioner complete the divorce without the other party's participation.

Features

A Florida motion for default form, Family Law Form 12.922(a), contains the case number, the names of both parties and the name of the county circuit court where the petition was filed. The motion contains a statement verifying that the petitioner delivered a copy of the petition to the respondent or his legal representation, how the petition was delivered and the date she sent it. She must give the name and address of the person she sent the document to as well as her contact information, and she must sign the motion. If she received help completing the form from a person who is not an attorney, that person -- referred to as a "nonlawyer" in Florida -- must fill out the bottom of the motion and give his name and address.

Rules

The petitioner can't file a motion for default until 20 days after he served notice of the divorce petition on the other spouse. Notice must be served on the other spouse personally in a Florida divorce case, and the server -- an uninvolved party -- must file proof of service with the circuit court. If the petitioner can't find the other spouse, he must use service by publication instead. He must place a notice in the legal section of a Florida newspaper -- state law permits him to chose the publication, but it must be in circulation -- for at least 30 days straight.

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Effects

Once the petitioner files the motion for default in the Florida county circuit court, the court clerk typically signs the motion as long as all court rules were followed. The petitioner can ask the court to schedule the last hearing on the divorce case as soon as the motion is granted, but she must send notice of the hearing to the respondent by personal service or mail.

Considerations

At the same time the petitioner files the motion for default, he must also submit Form 12.922(b), Default. The top section of the default form is signed and dated by the court clerk after he signs the motion, but the petitioner must fill in the case information, her name and address, and the name and address of the other party. Any assisting nonlawyer must enter his information, and the petitioner has to sign the lower part of the form. The petitioner can still request a trial instead of a hearing when filing a motion for default, but a trial is typically not necessary if the other party isn't participating in the proceedings.

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References

Related articles

What to Do if Your Spouse Will Not Sign Divorce Papers

In the case of a legal divorce, one party may not cooperate with the action, sign any agreements or negotiate any terms. The laws of each state govern the process of divorce, and all set down guidelines for actions in the case of a non-cooperative respondent.

What Happens If Divorce Papers Go Unsigned?

During the divorce process, the court and individual spouses’ attorneys ask both parties to sign agreements, petitions and affidavits. If one spouse refuses to sign the divorce papers, it is still possible for the divorce to proceed. Such refusals usually slow down the divorce process and may lead to additional hearings, trials or mediation sessions, but will not preclude the couple from ending the marriage.

What Papers Do You Need to Get a Divorce?

The exact requirements and paperwork for a divorce differ from state to state, although many of the requirements are similar. For example, every state requires some type of dissolution-of-marriage form. The exact papers you need for a divorce will also depend on whether your divorce is contested or uncontested. In a contested divorce, more paperwork will be required, as the divorce will require a trial or court hearing and all the paperwork associated with a trial, such as legal contracts.

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