What does default divorce mean? Have you filed for divorce and your spouse has not responded and ignored your filing for divorce?
My spouse has not responded to my divorce filing! What are my options?
As a document preparer I get many clients that have filed for a divorce and their spouse has essentially ignored the filing. When you file for a divorce you are required to provide proof of service to your spouse, once that is properly completed your spouse has a specific time frame outlined by the court to file their response. In many cases this does not happen, and the person who filed for the divorce is left to figure out what’s next?
For situations as the one described above most courts allow the individual that filed the divorce to request a default divorce. A request for a default divorce is a request to the court to order the divorce as you have outlined in your initial filing because your spouse, though properly notified (served) has chosen not to respond within the time frame given.
If you hired a legal document preparer you may want to return to them for assistance with your default.
If you filed for the divorce on your own or would like to file the request for default on your own the first thing you want to do is:
- Search the courts website for the forms and instructions.
- Read the instructions carefully and seek a legal consultation if you have any major questions or concerns before you begin.
- You must be sure that you meet the qualifications and complete the forms properly or you risk having your request denied.
In Arizona the person seeking a default must
- First file an application and affidavit for entry of default.
- This form must be completed, filed, and mailed to the spouse.
- The spouse then will have ten days to respond.
- Always make sure to read the instructions for your corresponding court; instructions and rules may vary from state to state.
Once you have made sure to follow all the instructions and have verified that you qualify to file for the request you can begin to fill out your request documents. One important detail is that you must fill out the documents with all the same information that you provided in your original divorce filing, this is important because your request may be denied if you change any of the information or requests that you originally provided. For example if you requested that the Court order the marital home be sold and the equity be split between you and your spouse you can not in turn ask that court to order the house be sold and you be given 100 percent of the equity in your request for default. The reason for this is that your spouse would have to be informed of any changes to your requests and be given the opportunity to respond to anything new. This means that if you have decided to make any changes to your requests you would have to amend your initial filing and have your spouse served with the changed documents. Once your spouse has been served with the amended documents the time he/she has to respond would begin again. If your documents are completed with the same information and requests that you have listed in your original documents or amended documents you should be ready to file.
In the state of Arizona you have the option of asking for a default decree with or without a hearing. The benefits of a default decree with a hearing is that if the judge or court staff have any questions or if something is not clear you can address it at the hearing. If everything is in order at the hearing your divorce is usually granted that same day.
The benefits of a default decree without a hearing is that you can have the divorce completed without having to attend a court.. The downside of a default decree with no hearing is that if the court or court staff have questions they will have to return the documents to you and ask that you clarify or fix any errors and resubmit. Also this method really has no timeline. In Arizona the court instructs individuals to wait four to six weeks before they can call for an update.You are basically waiting until the judge and staff get to your paperwork. The court prioritizes cases with hearings.
What if I don’t know where my spouse is?
If your issue is that you were unable to locate your spouse you would have had to ask the court for permission for alternate service or publication. Once that has been completed you would have to wait the time the court designated for a response, once that time has passed you can also file for a default and the same process above should apply.
Last step:
If you have requested a hearing, you will need to make sure you write down the date and time of your hearing. You should be on time and prepared with all the documents and copies your court requires per the instructions. If you need to change the date make sure to contact the court and ask for the instructions on how to do so. If you miss your court hearing without notice you may risk your case being dismissed and having you start the process all over.
If you have requested the default decree without a hearing you will wait for your documents and decree in the mail. Check with the court for information about when and where to call for updates. If the Court rejects your paperwork they may contact you or mail you the documents back with information on what is wrong or missing and a request that you resubmit. If this is the case I recommend you make your corrections and submit as soon as possible.
It is always important to make sure the court has your updated contact information so you don’t miss any correspondence, deadlines or hearings.
Depending on how long you have waited to file the default request and how long you have been waiting, the court may issue what is known in Arizona as a notice of dismissal. DO NOT IGNORE THIS. Even if you have submitted your paperwork or are in the process of doing so you run the risk of having your case dismissed. If your divorce is not complete and you don’t have a hearing date scheduled before the date of dismissal the court can and will dismiss your case. You should always file for an extension if you have not scheduled a hearing or received notice the divorce has been completed. The forms for an extension should be available along with the other documents you have prepared. Follow the instructions, complete the extension and file. If your case is dismissed it is possible to ask the court to reconsider, however this is not easy or guaranteed, it is much easier to make sure you have requested an extension. In most cases the court may allow you to file the extension up to the day of dismissal however this is not recommended. If your case is dismissed and you are not granted an order to reinstate, you will need to start the process over and your fees will NOT be refunded.
Again it is always important that you locate the proper instructions and forms for the corresponding court in your county. Follow the instructions diligently and make sure to consult with an attorney if you have any legal questions. If you have questions about the process you can consult a preparer or a court staffer if possible, remember they can not provide legal advice.
Melissa Medina is a certified legal document preparer and independent paralegal with 17 years of experience in the field. She has been helping communities in the valley through legal issues in family law, personal injury, estate planning and more since 2020.
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