What is a Divorce by Default?

You’ve probably seen a movie or TV show where one spouse wants a divorce, the other doesn’t, and the spouse seeking to get unhitched has to chase the reluctant spouse down to get them to sign divorce papers. Sometimes, just to add spice, the spouse who wants the divorce needs it on the double, before their imminent wedding to someone who has no idea they’re already married. It makes for good comedy, but it’s not very realistic—at least in Minnesota, where we have something called “default divorce,” or “divorce by default.”

Default divorce is terrible for movie scripts that depend on an urgent need to get someone to “sign divorce papers.” But it’s a very helpful process for people seeking a divorce when their spouse has received the divorce summons and petition, but refuses to do anything with those documents to move the divorce forward.

If it seems unfair to you that one spouse should be able to grind the divorce process to a halt just by refusing to participate, the State of Minnesota agrees with you. If you have filed for divorce and served your spouse with papers, failing to respond to your filings is a risky proposition—for your spouse.

How Default Divorce Works

Any lawsuit, including a divorce, depends on all parties to the lawsuit having notice of the legal action and the opportunity to respond and participate. Once you have provided your spouse with proper notice of the lawsuit, and filed proof of this with the court, the clock starts ticking. A spouse served with divorce papers (the respondent) has 30 days from the date of service to respond to the petition for divorce. They can answer the claims made by the petitioner, and even file their own counterclaims, asking the court to take certain actions that benefit them.

If those 30 days pass without a response, the ball is back in the petitioner’s court. If your spouse failed to respond within the allotted time, you can take action 20 days after the time for filing an answer has expired (50 days after the service of divorce papers). Your next move is to file a Default Scheduling Request. This form is available online or at the courthouse.

Under some circumstances, you can request the court to approve your request without a hearing. However, a default hearing is required if you and your spouse have minor children and at least one of you is not represented by an attorney.

There are other documents you must file along with your Default Scheduling Request, including a copy of the Petition for Divorce, a Proposed Judgment of Divorce, and a document containing findings of fact and conclusions of law. In essence, this document contains the basic facts regarding custody, parenting time, support, and property division that you want the court to approve. It also provides the court with the legal and factual basis upon which to grant a default divorce.

Let’s not gloss over the Proposed Judgment of Divorce, however. The proposed judgment is a proposed court order that, if approved, will establish the terms of the divorce. In most cases, so long as the terms of the proposed judgment aren’t unreasonable, the court will approve them, even though they may be more favorable to the petitioner. After all, the petitioner is the person who made the effort to participate in the lawsuit.

Can a Default Divorce Be Challenged?

A decree dissolving a marriage is final when entered, but there are still some grounds under which a respondent can reopen the divorce matter within a reasonable time, such as mistake or excusable neglect. For instance, if the respondent fell seriously ill after being served and did not recover in time to file an answer to the divorce petition, a court might consider that excusable neglect but do not count on it.

Fraud or other misconduct is another basis on which a respondent might be able to have a divorce reopened. It’s not hard to imagine a sneaky spouse telling the other, “You’re going to get some divorce papers, but don’t worry about them; you don’t even have to read them. My lawyer is going to draw everything up fairly, and you won’t even have to spend a dime or show up in court. I’ll take care of everything.” Hearing that might come as a relief to a respondent, only for them to find out later that they’d been taken advantage of.

A respondent could also argue that the judgment was void for some reason, such as that the divorce was filed in a court that did not have the authority to resolve the case. In general, though, challenging a default divorce is an uphill battle; it’s much simpler and less costly to participate in the divorce in the first place.

If you are seeking a divorce by default, or you have been served with divorce papers, working with an experienced Minnesota divorce attorney can help protect your rights. To learn more about default divorce in Minnesota, contact Mundahl Law at 763-575-7930 to schedule a consultation.