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In case my ex fails to file answer within 30 days, do I need to petition for default judgement or just wait for the judgement?

New York, NY |

I filed in NY and my spouse was personally served with the notice and complaint in Florida. The affidavit of service was also filed in court. Is there a need for me to petition for default or will the case move forward without me filing anything?

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Attorney answers 6

Best Answer
Posted

If there are no assets, you simply need to file documents to obtain your uncontested judgment on default which occurs after forty days. Motions are not necessary, but proper papers must be filed or you shall not be divorced. You should probably hire an attorney to help you do the paperwork.

Posted

You need to make a motion for default judgement with notice to other party. Otherwise your case does not move forward.

Posted

The Court will not, sua sponte (on its own initiative), grant a default judgment. You must file a Motion seeking a Default Judgment. This will then have to be served upon the Defendant (your ex) and he will be granted time to oppose it. The Courts are not inclined to allow a divorce go forward on default so they will likely give your ex every opportunity to "appear" in the action.

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Asker

Posted

I understand he is given 30 days to answer. But I've read about filing for default after 45 days. What is this 45 day period?

Asker

Posted

Also do I still need to appear in court? Will I need an attorney for that?

Douglas Shaun Kepanis

Douglas Shaun Kepanis

Posted

Yes you will need to appear in Court - you must first file an RJI so the Court can assign a judge to the case, then submit the Motion for Default, if the Defendant still fails to appear, you will have to go through an Inquest (basically a one-sided trial)

Asker

Posted

If I get a lawyer, would I still have to appear or will he do everything including the filing of the motion? Around how long would that take? I filed in New York almost a month ago. Thank you.

Douglas Shaun Kepanis

Douglas Shaun Kepanis

Posted

It is always best to have an attorney

Douglas Shaun Kepanis

Douglas Shaun Kepanis

Posted

Your lawyer would draft and file the requisite motion - but you would be required to appear at the Court with your attorney for all scheduled appearances.

Posted

Dejfault judgments are not given automatically. :You must file AND SERVE a motion for default judgment. You must serve the motion on your husband but the good news is that it can be done by regular mail (although doing so by regular mail and certified mail r.r.r. is preferable so that you can prove that he either received it or refused it. If a defendant refuses to accept certified mail, courts have deemed that the papers were served)). Make sure your affidavit of service clearly sets forth how the motion was "served".

Posted

The divorce will not proceed forward automatically. If you want a divorce, you will file be required to file a motion for a default judgment divorce. Once the divorce is granted, you will have to serve your spouse.

Posted

If your spouse was served properly, you can just file the balance of your papers in the matrimoinal clerks office, and obtain a judgement of divorce based on the default of your spouse. You do not need to make a motion for default, filing for a default divorce after your spouse has been served, and failed to put in an answer, is relatively easy. This only works if you have no children and are not trying to divide up any marital property