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Can I file a motion for default if I recieved the response but courts did not?

Ocala, FL |

I live in florida and filed a divorce. He has been served and today is his last day to file a response to the divorce. He had his mom hand deliver me his response, but the courts have not gotten it. If they do not recieve his response today, can I still file a default even though I have a response?

Attorney Answers 5

Posted

Generally no. Once a paper is served then you can no longer get a clerk's default.

The reason I say generally, is that family law can be a little quirky if you don't practice in it--and I do general litigation but no family law. I'm going to reclasify this as a family case so that someone who may have a little more knowldege thatn me as to the family law aspects might be able to confirm that.

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Posted

You could but you are taking the chance that he will file for a Motion to set aside the default judgment based on the fact that you were given a response prior to the default. then you would look unfavorable in the court for the balance of the divorce action. Be wise, accept the response and file it for him and then set your hearing or do a counter to his answer.

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1 comment

Christopher Lee Hixson

Christopher Lee Hixson

Posted

I agree with this answer, it provides the technical response that you can file for a default but also provides the practical advice that it will be turned over very quick because there was an attempt, it does more damage to you in the eyes of the person deciding who to believe in the action.

Posted

No, not recommended. There really is no point either because he can easily get it set aside and then you look like you did it in bad faith.

You should consult an attorney for advice regarding your individual situation since every case is different and not all information is relayed in an online question. The Law Office of Ophelia Bernal-Mora, P.A. is a family law firm located in Orlando, Florida, we invite you to contact us and welcome your calls at 407-377-6828. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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Posted

No. You cannot file it in good faith because you have received a response from him indicating his defense. You have been served with the response, and the rules require "service" of an answer within 20 days, not filing.

If you are asking these kinds of questions, you are not represented by an attorney. You should get assistance of counsel.

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2 comments

Asker

Posted

I was not served his response, he had his mom give me a sealed envelope. The "response" was typed and not signed, not dated, nor was a case # attached to it. He only spoke of money and never spoke of the children. My papers request sole parental with no time share until certain requirements are met. The injunction I have gave him no visitation. Now, after 6 days,.the courts post his response, but they dated the post for the date he needed to have it in, yet I confirmed throughout the 6th and also the day after, if they recieved his response and was told no. I am not sure what is going on there but something isnt right.

Robert Lincoln

Robert Lincoln

Posted

You received notice that he intends to respond, and that prevents a default from being effective. If you have proof of service, and he has not filed his response, you might move for some kind of summary relief - just not a default. It's very unlikely under Florida law that any "default" could address "visitation" or shared custody issues. This is clearly complicated and you really need to talk to an attorney. There is a legal aid organization in Ocala that may be able to help you.

Posted

Technically, you could try to get the default. However, it will ultimately be a wast of your time. The court will acknowledge that you did receive a response, and will want to hear the case on the merits. In addition, family law courts will always allow a parent to be heard when children are involved. This applies even with a default. So, if children are an issue in your case, it will make little if any difference.

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