If you missed the deadline to file your Response to the Petition (30 days after the date of personal service), you will first need to confirm whether or not your spouse has filed a Request to Enter Default. A Default effectively takes away your leverage and your voice. You spouse is free to proceed without you. Since most of us have at least some assets, money, personal property, gifts, vehicles, debts etc. and some exposure to pay financial support, or right to receive it, it is usually recommend that you file a Response so that you can protect your interests.
Most Courts will allow you to look up what documents have been filed in your case online. If they do not allow online access, you will have to call the family law clerk’s office for the county where the Petition was filed. Whether you look it up yourself or call into the clerk’s office, you will need your case number (which is on the Petition that you were served with), so make sure you have this handy.
Request to Enter Default not filed:
If the Request to Enter Default has not been filed, you have a couple of options. If your spouse and you are communicating amicably then you can simply ask for an extension to file. You will want to have the agreement in writing, preferably with the length of the agreed upon extension. You will need to make sure that you file your Response as soon as possible and before the expiration of the extension.
If you and your spouse are not communicating then you will need to file your Response immediately. After 30 days, without an agreed upon extension, your spouse can file the Request for Entry of Default any day, this will bar you from filing a Response, without a stipulation or the Court’s permission.
Request to Enter Default has been filed:
If the Request to Enter Default has been filed, you can submit a request to your spouse (or their attorney) and request that they sign the stipulation to set aside the default and allow you to file your Response. If they agree to a stipulation, you will need to file this with the Court, with a filing fee. You will then need to file your Response within the new deadline.
You can also file a motion requesting the Court’s permission, if necessary. You will have to explain to the Court why you did not timely file your response, whether it was simply neglect, if the service was untimely or if the service was improper. The motion will most likely require you to pay your first appearance fee (you will need to have the original and at least 2 copies when you file; one copy for you and one copy to have served). When you file the motion, the clerk will give you a court date. This will need to be set out far enough to allow adequate time to have your Motion served. You will need to have a copy of the motion served on your spouse or their attorney. The motion can be served by mail (which requires 16 court days, plus 5 calendar days for mailing) or personal service (16 court days). You should try and ensure that your Response is ready by the court date, that way if the Judge grants your motion, you can immediately file the Response.
Your remaining option if the Request to Enter Default was filed, is to let the default stand and work with your spouse to come to a full agreement and enter a Judgment as Uncontested. This can be a potentially risky option but it is an option. You may still have to pay your first appearance fee if you sign and file a Stipulated Judgement or Marital Settlement Agreement. The risk in this avenue is that if the communication between your spouse and you breaks down, and it becomes a contested situation, they have already entered your default and can proceed to Judgment without your input. Your options to set aside the default may no longer be viable. You potentially may be able to file a motion to set aside the default, but the longer you wait the harder it may be to convince the Judge to grant your relief.
Your best and safest option is to file a Response (if possible). This will ensure that your rights remain intact and will not require additional steps and time. If your spouse has already filed a default, you should strongly consider filing a Request to Set Aside the Default and/or simply asking your spouse if they will agree to set aside the default by agreement. You might just get a “yes” since most people don’t want to have to take the time to go to court and battle it out. Contact us if you have further questions!