When Your Spouse was Served but Failed to Answer

If your spouse was served (personally or by publication) and their deadline to file a answer has passed, then you should proceed with a default.

If you obtained personal service on your spouse, then they will have twenty (20) days to file a response. The 20 days are calendar days, not working days. Also, if your spouse was served before 6:00 p.m., then the day of service counts as the first day. If serviced was obtained after 6:00 p.m., then the following day will be day 1 of 20. If day 20 falls on a Saturday, Sunday or legal holiday, then the following work day will be used as the last day to respond. If you obtained service via publication, then the deadline to respond will be posted within the Notice of Action for Dissolution of Marriage.

There are two methods of default – a clerk’s default or a default through the court. If your spouse has not filed any paper at all, then your default can be sought through the clerk. If your spouse has filed any paper, but what they filed was not a proper response, then you must seek default through the court. If a court default is required, you will need to file a motion and a hearing will be necessary. If no response has been filed and a clerk’s default is available to you, then you merely need to file a Motion for Default with through the Clerk’s office.

Prior to a default being entered, you will have to show that your spouse is not active military. To satisfy this requirement, file a Nonmilitary Affidavit.

If a default is granted, you may then proceed to a final hearing. At the final hearing, you will need to prove to the court that either you or your spouse have been a Florida resident for at least six (6) months prior to filing for divorce. Typically you prove this by bringing your Florida driver’s license to the Final Hearing. Note: Check the Issue Date on your license. If the issue date is less than six months from the date of filing, then you will need to prove your Florida residency through either a Florida voter’s registration card or through the testimony (or affidavit) of someone else who is a Florida resident and who can testify that they know you and know that you have been a Florida resident for the six months prior to filing for divorce.

At the final hearing, the court may only award you what you asked for in the petition. Be sure your Petition for Dissolution of Marriage is accurate and complete. If you forget to request something in your petition, then the court will not be able to give it to you. Also, if you want the court to address real property (house), the petition must specify the location and legal description of the property in question. This is extremely important and almost always left out by a petitioner who is filing pro se or using a paralegal service. If proper notice is not given to your spouse because the home is not properly identified in the petition, then a separate action for partition property may be required.

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The Divorce Center is a group of Florida Divorce Attorneys dedicated to providing excellent service to all that need our services. This website was created by Attorney Howard Iken as a public service. Be sure to visit our offices or seminars to pick up a free copy of our Guide to Florida Divorce and Custody. CONTACT US NOW or call 800-469-3486