Sometimes, if you ignore a problem long enough, it will just go away. More often, ignoring a problem means it just becomes a bigger problem. With legal issues, this is typically the case. Ignoring a summons and petition for dissolution (divorce) doesn’t mean that you can prevent your marriage from ending. If you fail to respond to this paperwork in the time given by law, it means that your spouse will likely ask the court to find you in default in the case, and they may be granted everything they asked for in their petition, with or without a default hearing. So what is a default hearing in a Minnesota divorce?
Let’s talk a bit about what is necessary to enter a default against someone in a lawsuit—which is what a divorce is. Most lawsuits, including divorce, are trying to affect the parties’ rights and obligations with respect to each other, or to alter the nature of a relationship. In the case of a divorce, both of these things happen. The marriage, the legal relationship between the parties, is severed. Then there are property rights that change. Instead of both parties having the right to all marital property, that property gets divided between them.
A divorce may also create the legal obligation of paying spousal maintenance or child support. And perhaps most important, if a couple has minor children, the divorce will determine each parent’s right to spend time with the children and ability to make decisions for them.
With so much on the line, it would be unfair for one party to be able to just go to court and change these relationships, rights, and obligations without the other party getting to have a say. On the other hand, it is also unfair for one person to be able to stop the legal process simply by refusing to participate.
To avoid unfairness, the person filing the case can default against the person who fails to participate after notice and a certain time period. The person who files for divorce is the Petitioner. The person who is served with a summons and petition for dissolution is the Respondent. After being served with the summons, a Respondent has 30 days to file an answer to the petition with the court and serve that answer on the Petitioner.
If the Respondent was properly served, and fails to answer, the court can enter a default against them, which means that the Petitioner can proceed with the lawsuit without the Respondent’s participation. A court might also enter a default against a Respondent who initially answered the petition, but then later failed to appear for a court hearing that they were notified of the need to attend. Also, if the Respondent’s answer to the petition for divorce did not meet legal requirements, the court might enter a default.
Which brings us back to the original question: what is a default hearing in a Minnesota divorce? A default hearing is the court’s attempt to confirm that there is no reason it should not grant the Petitioner everything they asked for in their petition. Remember: rights and relationships are being altered here, and the court wants to do everything possible to show that it gave the Respondent a fair opportunity to participate in the legal process. So especially in situations where there are minor children involved, or where the Respondent has participated on some level in the case, the court will require a hearing to get any information needed to make a decision on the Petitioner's petition.
Be aware that in some cases, a default hearing is not required, such as if there are no minor children and the Respondent has not answered or participated in the case at all, despite having been given ample time and opportunity to do so.
If you are filing for divorce, your attorney will note in her calendar the date that the Respondent’s answer is due, and can ask the court to enter a default if an answer is not filed in a timely manner. If you are on the receiving end of a summons and petition for divorce, be aware that if you put off answering, or don’t give a legally sufficient answer, a default could be taken against you. While it is not impossible to have a default set aside for good cause, there is no guarantee that a court will be willing to set aside a default. Don’t risk jeopardizing your property rights and relationship with your children. If you are served with divorce papers, consult an experienced Minnesota family law attorney right away. We invite you to contact Mundahl Law with your questions about Minnesota divorce.