A default divorce can be obtained in New Jersey cases where an ex-spouse refuses to respond to the divorce petition or when both parties have already settled the terms and are looking for a quick, low-hassle marriage dissolution. It’s not ideal for every situation, but there can be some marked advantages in certain circumstances.
A default divorce is when one party obtains a divorce judgment based on the other’s failure to respond to a properly-served divorce notice. Comparatively, an uncontested divorce is where both parties want the divorce, agree on all issues requiring resolution, and are active – but amiable – participants in the process.
Default divorce may be a smart option if you’re looking to keep down your costs and avoid Court appearances and drawn-out litigation. (Last year, New Jersey Courts put in place procedures to resolve both default divorces without in-person hearings in response to the COVID-19 pandemic; it’s possible we may see this continue.)
In some cases, former couples actually agree between themselves to a default divorce as a means of quickly dissolving the marriage and moving on with their lives. They settle the terms between them ahead of time, decide which spouse will file, and the other agrees not to answer the divorce petition within the required 35 days. From there, plaintiff spouse has 60 days to file a request asking for a default judgment. (They must verify the defendant spouse isn’t active duty military.)
This might sound like a great option for a quickie divorce without all the hassle, but it’s important to understand that there can be some drawbacks to default divorces – and not just for the person against whom the default judgment was issued.
Default Divorce Drawbacks
Default divorces are inherently one-sided. Because one party is not responding at all – even if that’s intentional – the Court is only getting a one-sided request. This is why default divorce judgments aren’t appropriate for situations where:
It is important that the individual who is not responding to the divorce understand that by doing so, they are forfeiting their right to contest the Court’s decision.
Even if you both agree a default divorce makes the most sense for your situation, it’s critical to ensure you both understand what a default judgment is going to mean. Judgments aren’t necessarily simple (or cheap) to vacate, but they can be reconsidered and reversed if it’s believed the Judge made a major mistake substantially impacting the rights of one of the parties involved. Requests for reconsideration of a default judgment is allowable within 20 days of the final divorce decree. If the Judge agrees to reconsider and reverse, it can put both of you back at Square No. 1.
To avoid this kind of uncertainty, it’s usually a good idea to have a settlement agreement already drafted, reviewed by your respective attorneys, and signed before pursuing a default divorce.
What Else Should I Know About Default Divorce Judgments?
If you are the plaintiff and don’t have a signed settlement agreement with your spouse, you’ll need to make sure you’ve given your soon-to-be-ex fair notice of:
These notices must be served on the defendant at least 20 days prior to the default divorce judgment hearing. Proof of service must be presented at the hearing.
It is possible to obtain a default divorce judgment even if both of you attend that hearing. In fact, if there is a settlement agreement in place, it’s wise for both of you to attend (whether it’s virtual or in-person). Questions will center on aspects like whether you both knowingly and willingly agreed to the settlement terms, whether you consider them fair, whether you understand the rights you’re waiving, and whether it resolves all the outstanding issues in your case.
It should be noted that just because one person fails to appear or respond to the Court doesn’t automatically mean he or she is guaranteed a default divorce judgment. Further, even if he/she succeeds in obtaining a default divorce, they still aren’t entitled to all or even most of the marital assets while the ex is stuck with all the marital debts. The plaintiff is still required to show that their requests for equitable distribution are fair according to NJSA 2A:23-23.1, given the unique facts of the case.
If you are considering pursuing a default divorce judgment in New Jersey or believe one has been unfairly entered against you, it’s important to promptly talk to an experienced family law attorney right away.
Call Rozin|Golinder Law, LLC today at (732) 377-3367 for a free and confidential consultation.
