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

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?

Ocala, FL -

Attorney Answers (5)

Lucreita D. Becude

Lucreita D. Becude

Family Law Attorney - Jacksonville, FL
Answered

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.

Ophelia Genarina Bernal-Mora

Ophelia Genarina Bernal-Mora

Family Law Attorney - Orlando, FL
Answered

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... more
Elmer Sanchez

Elmer Sanchez

Government Attorney - Orlando, FL
Answered

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.

William H. Davie II

William H. Davie II

Litigation Lawyer - Green Cove Springs, FL
Answered

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.

Information posted or made available on or through this site, including without limitation any responses to legal... more
Robert Lincoln

Robert Lincoln

Land Use / Zoning Attorney - Sarasota, FL
Answered

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.

Related Topics

Divorce

Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

Featured Legal Guides

Divorce Court

Divorce court is where the divorce process takes place. The court may determine matters like alimony, child custody, and property division.

Featured Legal Guides

Avvo Staff

An Overview of Divorce Court Fees

by Avvo Staff

Just as each state has its own requirements to successfully file for divorce, each state also has its own types of fees and rules for when they will... more

Questions? An attorney can help.

Ask a Question
Free & anonymous.
Find a Lawyer
Free. No commitment.