Oftentimes a spouse will be served with a Complaint for Divorce by the other spouse and then do nothing. Whether it is because he or she does not want to deal with the situation, does not understand the resulting legal ramifications of “sitting on your hands”, or something else, doing nothing is almost always a bad idea.
After being served with a Complaint for Divorce, a spouse has 35 days to answer or otherwise respond. Should he fail to do so, the filing spouse can request for default to be entered against the non-responsive spouse. The request to enter default has to be made within 6 months of the actual default. Where equitable distribution, alimony, child support, and other relief are sought and a default has been entered, the plaintiff is required to file and serve on the defaulting party a Notice of Proposed Final Judgment – not less than 20 days prior to a hearing date where the trial court will typically take testimony and render a final determination on such issues. This can happen even without any involvement by the defaulting party, including even as to custody and parenting time, demonstrating how critical it is to be an active litigant in your own matter.
Can a party against whom default has been entered have the default vacated so as to protect their own interests? While there is an avenue by which to vacate a default, there is no certainty that the request to do so will actually be granted. The court rules require that a party seeking to vacate a default file a motion “accompanied by (1) either an answer to the complaint and Case Information Statement or a dispositive motion pursuant to R. 4:6-2, and (2) the filing fee for an answer or dispositive motion, which shall be returned if the motion to vacate the entry of default is denied.” The court may then vacate the entry of default upon “good cause shown” – based on considerations including, but not limited to, whether the default was willful or culpable, whether vacating the default will prejudice the other party, and whether the defaulting party has a “meritorious defense.”
The defaulting husband in Lanzaro v. Lanzaro, a new unpublished (not precedential) decision from the Appellate Division, learned the hard way. There, the trial court denied the husband’s request to vacate default where he failed to file a written motion seeking to vacate default, nor did he provide one to the court at the final hearing. Further, he had failed to comply with prior court orders, and failed to respond to the complaint, each of which the court found to be willful. The husband also failed to provide a meritorious defense to the wife’s equitable distribution claims, since no proposed answer detailing such defense or sufficient evidence was provided in support of his position. Thus, while the husband’s attorney was authorized to cross-examine the wife as to her proposed distribution of assets, the husband was neither permitted to testify or submit his own “affirmative” evidence to support his own position. In effect, he was absented from the case.
The primary lesson to be learned – be an active litigant in your case. Only one party needs to want a divorce in New Jersey to make it happen. Waiting idly by and refusing to be a participant in your own litigation will not only impact the immediate proceeding, but potentially your long-term future as well.