When Your Spouse was Served But Did Not Answer was last modified: February 13th, 2018 by Howard Iken

When Your Spouse was Served but Did Not Answer

default in divorce courtImagine a baseball or other sports team takes the field in preparation for a much-anticipated matchup. As they parade out of the locker room and onto the field, they observe that the field is empty. The stadium seats are packed and the game officials are ready to go, but the adversary has chosen not to exit their locker room on the other end of the stadium. After several failed attempts to coerce the opposing team out of its room and onto the field, the officials have only one choice: they declare that the team that has failed to take the field has forfeited the match, and a victory is awarded to the other team.


In a nutshell, this is what happens when the court awards one party a default judgment in a divorce or custody proceeding (or any other legal proceeding for that matter): the court finds that one party has failed to “take the field” and as a result the court has no choice but to proceed without the other party’s participation. While a default judgment in favor of one party does generally give that party the legal relief he or she requests, obtaining a default judgment is not automatic. Furthermore, there are means by which a default judgment can be set aside, permitting the other party to begin participating in the process and defend him- or herself against the lawsuit.


Serving Your Petition is the First Step in a Florida Divorce


Once a petitioner files for divorce in Florida, he or she must cause a copy of the petition for divorce and associated documents to be served on the opposing party (who in the context of a divorce becomes known as the “respondent”). “Serving” documents on the opposing party is not as simple as dropping the documents by the person’s house or putting them in the mail; instead, the documents must typically be delivered by a sheriff’s deputy in the county in which the respondent lives or a professional process server who is over the age of 18. The

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importance of properly serving your ex-spouse with divorce papers cannot be overstated: if service is not properly completed, it may be difficult – even impossible – for you to obtain a default judgment if he or she fails to respond. Proper service of process gives the court some assurance – a statement under oath by the deputy or process server – that the other party was in fact made aware of the petition filed against him or her and therefore has no reason not to respond to the lawsuit. In some cases, your ex-spouse can be considered “served” by having a legal notice printed in the local newspaper. In order to be able to do this, you must file a sworn statement with the court stating that you had attempted to locate the respondent but do not know where he or she is located or that he or she is concealing him or herself and there is no other method by which you can achieve service of process on the respondent.


Your Ex-Spouse Must File an Answer to Your Petition


Once served with your petition or other legal document, the respondent has twenty calendar days in which to file his or her “answer” or response to the claims made in your petition. This twenty-day period begins to run once service of process is accomplished on him or her. This twenty-day period is a twenty calendar day period, meaning that weekends and holidays are counted. A respondent who receives service from a sheriff’s deputy or process server must be very careful to note when the 20-day period expires.


The respondent is often able to extend that 20-day period by requesting that the clerk for the county court in which the petition was filed give the respondent additional time to reply to the petition. Once such a request is made and granted, the deadline for the respondent to reply to your petition is extended.


If service is achieved by publication, there will be a date contained in the published legal notice by which the respondent must reply.


(Note that if the respondent is a member of the military, there are protections afforded to him or her by law. The assistance of an attorney is recommended to ensure you comply with these additional requirements. If the respondent is not a member of the military, you must typically file a sworn statement stating this.)


What Happens on Day 21 if No Extension is Requested?


calendarThere is nothing magical or automatic that occurs if the respondent fails to respond to your petition within the 20-day timeframe. In fact 20, 40, or even more days may pass without the respondent replying to your petition and still nothing would automatically occur. Instead, the petitioner – the one who filed the petition – must file a Motion for Clerk’s Default in the same court that the petition was initially filed. This motion, once granted, allows the case to proceed without the participation of the respondent. To return to the sport’s analogy used earlier, the Motion for Clerk’s Default is a request by one team to allow the game to proceed even though the other team has not taken the field.


A Motion for Clerk’s Default will allow you to obtain a final hearing or trial in your case earlier than you would have if the respondent had participated. If the clerk approves your motion and declares the respondent in default, your case will be considered by the court without the respondent’s participation. The court will consider your petition and any evidence you choose to provide in support of your petition. If the court finds there is sufficient evidence in your petition to support your request for relief, your petition will be granted.


For example, a petition in which you propose a certain division of property, custody of your children, and/or spousal support would be granted by a court if a default is properly requested and the court finds the evidence contained in your petition supports the granting of these requests.


What Can a Respondent Do if the 20-Day Period Has Elapsed?


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If a respondent realizes that he or she failed to respond to a petition within the prescribed time – or if he or she decides to begin participating in the case after the expiration of the 20-day response period – his or her next steps will depend on whether or not the petitioner has filed a Motion for Clerk’s Default and whether such a motion has been granted. If not, the respondent may be able to file his or her answer late. (He or she may need to be prepared to explain the delay in filing the answer and/or formally request permission from the court to file his or her answer late.)


If the clerk has already granted the Motion for Clerk’s Default, the respondent must take additional actions before responding to the petition. Simply filing an answer at this stage will do nothing. Instead, the respondent must make his or her own motion asking that the default be set aside. A hearing on this motion is held and at this hearing the respondent bears the responsibility of showing why the motion ought to be granted. Although motions to set aside defaults are usually granted, the respondent must still show:


  • The failure to respond to the petition was due to excusable neglect. Bad decisions, changes of heart, and mistakes by the respondent or the respondent’s attorney generally do not qualify as excusable neglect. Typically those situations that qualify as excusable neglect are those that are beyond the control of the respondent. If the respondent is in jail, for example, or if he or she experiences car trouble while attempting to take his or her answer to the courthouse on the day the answer is due may qualify as excusable neglect. The respondent should be prepared to provide objective evidence or additional testimony to establish excusable neglect.
  • The respondent has a meritorious defense. This merely requires some showing that the respondent could “win” in some manner at a trial. Because divorces involve property division and/or custody, it is usually easy for respondents to demonstrate that they have a chance at winning something.
  • The respondent acted with due diligence in moving to set aside the default. Finally, the respondent must show that once he or she learned there was a default that he or she acted promptly and appropriately in seeking to set the default aside. In other words, the respondent cannot learn of the default and then wait an unreasonable amount of time to try and set the default aside. What qualifies as an unreasonable amount of time will depend on the circumstances of each case; however, it is safe to say that waiting a week or more before filing a motion to set aside a default is not likely to satisfy this requirement to act with “due diligence.”


If the respondent satisfies the court that the failure to respond to the petition was due to excusable neglect, that the respondent has a meritorious defense or a chance of winning, and that the respondent acted with due diligence once he or she learned of the default, then the default will likely be set aside. Once this occurs, the case proceeds as if no default was entered.


What If My Ex-Spouse Does Respond But Does Not Do So Properly?


Florida law sets out what an answer to a petition must contain. Sometimes respondents (especially pro se respondents) will “respond” to a petition in a manner that is not approved by law. (For example, a handwritten note that simply calls the petitioner a liar or voicemail left on a judge’s telephone is not an approved answer.) In such a case, if the appropriate answer period has elapsed and the respondent filed some sort of response but not an approved answer, a default judgment is still possible. In this case, however, the procedure for obtaining a finding that the respondent is in default is different.


The petitioner in this situation cannot file a motion for clerk’s default; instead, a motion must be filed and considered by the judge assigned to the case. The judge will almost always require a hearing on your motion and permit the respondent an opportunity to show why a declaration of default should not be entered. If the respondent is found to be in default, the case will proceed in the same manner as if the default was entered by the clerk; namely, the respondent will have an opportunity to move to have the default set aside.




Florida courts prefer that cases and disputes are resolved on the merits after both sides have had an opportunity to present their case. That being said, courts are busy and will not pressure or force a respondent to participate in a lawsuit if he or she does not want to. If a respondent was properly served with a petition but fails to answer, a clerk’s default can be sought. If granted, this will allow your case to proceed to a final hearing without the participation or presence of the respondent. The court will then consider your petition and award you the relief you requested. If the respondent did reply but not in the form of an “answer,” a judge will need to determine whether the respondent is in default.


Once the respondent is in default, he or she must have the default set aside before he or she will be permitted to participate in the lawsuit. More specifically, he or she must show that the default was due to excusable neglect, that the respondent has a chance of winning at trial, and that he or she acted with due diligence once he or she learned of the default.


If possible, respondents will want to avoid being declared in default by the court as this increases the odds of an unfavorable outcome.


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