Can I Set Aside a Default Entered Against Me in My Divorce Case?
A default entered against you is nothing to take lightly. In fact, a default has serious ramifications and should be dealt with accordingly. If you have been served with divorce papers, or have discovered a default has been entered against you in a divorce proceeding, contact your Tallahassee Divorce Attorney immediately to begin the process of setting aside the default in the case.
According to Florida Statute, if you have been served with divorce papers you have to file a response or answer within 20 days of your receipt of service. If you fail to respond, your spouse has the right to file a Motion for Default to be entered against you. This motion will be filed and the clerk will determine if you were served and failed to respond within the designated timeline. If both elements are satisfied, the clerk of court will enter a default against you. If a default has been entered, this allows your spouse, and the court to proceed with the case without your input, and may even conclude the entire divorce proceedings without you involved in the process.
If you wish to set aside a default entered against you, simply beginning to participate in the divorce proceedings is not enough. You must file a Motion to Set Aside Default with the court and be prepared to argue this motion at a hearing before a judge. Within this motion, you must provide the court with reasons as to your neglect to properly adhere to the regulated timelines and limitations of the court proceedings. Specifically, the court requires “a party attempting to set aside a clerk’s default must demonstrate excusable neglect, a meritorious defense, and due diligence in order for the trial court to vacate the default.” Each of these elements must be addressed in your motion and you should obtain proper evidence to support your claims.
In the Florida 4th District court of appeals case Bowers v. Allez et al., the court defined excusable neglect as “where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.” Some accepted excusable neglect examples are when the filing system crashed preventing the filing of an answer, a secretary attached the filings to the wrong client, or misfiled the summons. However, your ignorance of law or bad judgment is not sufficient to display excusable neglect.
The second element required to set aside a default, is the showing of a meritorious defense. This simply means that you have any defense to the original complaint or petition. This is typically a low threshold for divorce actions as each party has significant rights to marital property, common children, and distribution of assets. Therefore, the court will generally find this element to be satisfied.
Finally, you must show due diligence to correct the default upon discovering its existence. Therefore, if you discovered a default was entered against you a month ago and did not take action to resolve the legal discrepancy until now, the court will not find you have displayed due diligence. Therefore, if you find there is a default entered against you contact your Tallahassee Divorce Attorney today to begin the process of resolving the default and having it set aside in order to protect your rights in your divorce proceedings.
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