Default Divorce: Obtaining a Divorce When Your Spouse Fails to Respond

In the eyes of the court, a default signifies that the Respondent has waived their right to participate in the litigation. However, this does not give the Petitioner a "blank check." The judge must still determine that the proposed division of assets and custody arrangements are equitable and in the best interests of the children. It is a transition from a two-party dispute to a one-party presentation of evidence.

The transition happens when three conditions are met:

• The Respondent has been properly and legally served.
• The statutory deadline (usually 20 to 30 days) has passed.
• No answer or notice of appearance has been filed with the court clerk.

This is the most frequent point of failure in a default divorce. You must provide "Proof of Service" that satisfies local rules. If the Respondent is avoiding service or living overseas, you may need a court order for "Service by Publication." If the service is later found to be improper, any judgment you receive will be entirely void.

Most states impose a mandatory "cooling off" period between the date of service and the finalization of the divorce. While the deadline to respond might be 20 days, the court may wait 60 to 90 days before signing the final decree. Understanding these state-specific windows is vital to managing your expectations and litigation timeline.

Once the deadline passes, you must file a formal "Request for Entry of Default." In some states, this is an administrative task handled by the clerk. In others, you must file a motion and appear before a judge. This step "locks the door" on the Respondent, preventing them from filing a late response without a specific court order.

You cannot simply "get" a divorce without providing evidence. A "Prove-Up" hearing is often required where you testify to the facts of the marriage and the fairness of your requests. In some uncontested or low-conflict jurisdictions, you may be allowed to submit a detailed affidavit in lieu of a live appearance.

A judge cannot grant you an asset that you did not specifically mention in your initial petition. If you failed to ask for the house or a share of the retirement account in your "Request for Relief," the court will not add it for you during a default hearing. Your petition is the hard "limit" of what the court can award.

Even in a default, the court has an independent duty to protect the welfare of children. The judge will review your proposed parenting plan and support calculations. If your request for alimony or custody seems punitive or unsupported by the facts, the judge may deny those specific portions of your default request.

A Respondent who suddenly appears after the judgment is entered can file a "Motion to Set Aside." If they can prove "excusable neglect" or that they were never properly served, the judge may reopen the entire case. This is why SJKP LLP prioritizes "redundant service" to ensure the Respondent has no grounds to claim they were unaware of the suit.

If your spouse is overseas or has disappeared, enforcing the property or support orders in a default judgment can be incredibly difficult. A piece of paper from a court is only valuable if it can be executed against bank accounts or real property. We conduct a "liquidity audit" to ensure the assets you are seeking can actually be recovered.

While a default divorce is cost-effective, you should never intentionally induce a default through deceptive means. The court values transparency. If you have any line of communication with your spouse, it is often safer to pursue an "Uncontested" path where they sign a waiver, rather than relying on a silent default that could be challenged later.