You can default your spouse in a divorce case if they have not filed a response to your petition to dissolve the marriage. No notice of the motion for default need be given unless they have filed a Notice of Appearance. But what if they have "informally" appeared in the case?
If Your Spouse Has Not Appeared in Your Divorce Case
The basic rule is stated in Civil Rule 55. If your spouse has not filed a Response to your Petition or a Notice of Appearance in your divorce case, you can normally get an Order of Default and have all your final orders entered without the need to even give prior notice to your spouse. You do have to wait for 90 days after both service and filing of the pleadings. After that, if all your paperwork is in order and your Proof of Service is on file, you should be able to get your divorce finalized by default.
What Is a Notice of Appearance?
CR 55 (a) (3) does provide that “Any party who has appeared” must be given 5 days prior notice of a hearing on a motion for default. The same rule provides that “Any party who has not appeared…is not entitled to a notice of the motion….” "Appeared" usually means the filing in court of a "Notice of Appearance". This form can be obtained on line at www.Wash.gov.court. Once a Notice of Appearance has been filed, the petitioner in a divorce cannot get a default against their spouse without first giving prior notice of the date, time and place for the Motion for Default. The motion can still be filed, but in order to get all the final orders entered by the Court, the petitioner must show the Commissioner that the responding spouse was given prior notice of the Motion for Default.
What Is an Informal Notice of Appearance?
Washington State has three divisions of its Court of Appeals. All three divisions have filed published decisions over the years which recognize a concept of an "informal appearance". An informal appearance is basically the expression of an intent by the defendant to oppose the petition that was filed in a court case. Examples from the appellate cases include multiple phone calls to the petitioner's attorney, letters containing an offer to settle at a smaller amount than asked for in the petition, and extended settlement negotiations. These cases from the Court of Appeals basically say that where the defendant clearly communicates an intent to oppose the petition, the Defendant must be given prior notice of the Plaintiff's Motion for Default, and an opportunity to be heard at that motion, before an Order of Default may be entered.
Is the Informal Appearance Doctrine Dead?
In 2007, the Washington State Supreme Court apparently rejected the concept of an "informal appearance" in law suits in Washington State. Morin v. Burris, 160 Wn.2d 161. "The informal appearance doctrine ... would permit any party ... to simply write a letter expressing intent to contest litigation, then ignore the summons and complaint.... Parties formally served by a summons and complaint must respond ... or suffer the consequences of a default judgment." Morin, at 749, 756, and 757. The majority opinion did not clearly reject the informal appearance doctrine. However, the concurring opinion in Morin noted that the Court was actually throwing out the analysis which all three divisions of the Court of Appeals had applied for years. It would seem clear that the "informal appearance" doctrine is dead in the State of Washington. The best practice, however, would be to provide prior notice of a motion for default whenever the opposing party has expressed an intent to oppose the petition.
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