LEGAL GUIDE
Written by Avvo Staff | May 30, 2014

Failure to appear – what does it mean for your divorce?

A divorce is a civil court case, and in many situations, you will have to go to court at least once to finalize the divorce (even if you started it as an online divorce. Depending on your specific situation, you may also have to attend interim court hearings to address specific issues such as property distribution or child support.

Failure to appear at a scheduled court appearance can have serious consequences for you and your case.

What is a failure to appear in divorce court?

Failure to appear means you have skipped a scheduled court date without notifying the court that you could not make it. Failure to appear is technically a crime. You can be charged with contempt of court, and the judge can issue a bench warrant for your arrest. You may also have to pay a fine.

These things don't usually happen in a divorce case, but it's still in your best interest to show up. For one thing, the best way to get a fair ruling is to be in court to defend your rights.

Also, states generally allow divorcing couples to avoid most or all court appearances by coming to fair terms on their own. So if you force the court to make decisions for you, a judge is likely to look unfavorably on a spouse who skips a scheduled hearing.

What happens when one spouse fails to appear?

It depends partly on your state's laws. For an uncontested divorce, one or both spouses may be allowed to skip the hearing to finalize the divorce.

A contested divorce can be different, though, and one or more hearings may be needed. In these cases, when one spouse fails to show, the judge may do one of a few things:

  • Rule in favor of the spouse who did appear, or
  • Reschedule the hearing, or
  • Dismiss the case or motion

The outcome often depends on the reason for the hearing and the reason which the spouse failed to appear.

For example, if the respondent (the spouse served with divorce papers) fails to answer the divorce petition by either filing a written response or appearing at a preliminary hearing, the petitioning spouse can ask that the case move forward anyway. If that's you, your lawyer can file a motion to get a default judgment against your spouse. You will often get whatever you asked for in your petition.

If you are the one filing for divorce, you risk having your motion dismissed for failing to appear. Your case could even be dismissed entirely if you skip certain hearings, such as a status conference. Then you may need to refile.

If the hearing is for issues such as child custody, child support, or alimony, the judge is likely to reschedule to make sure both sides can be heard. But he or she may also proceed without the absent spouse, especially if it's not the first time that person skipped a hearing.

If the judge decides to proceed with only you at the hearing, you will give your testimony and the judge will make a decision. As long as you make a convincing case that what you are asking for is fair, you are likely to get it since your spouse is not there to disagree.

The other person can often appeal, but success is not guaranteed. A cautionary example of the financial consequences of skipping a divorce hearing is the case of Jose Darley, who got a divorce in Panama. He then asked the state of Virginia to recognize it or grant him a divorce there. He did not attend the Virginia hearing, but his wife did. She asked for and got half of his military retirement pay, among other things. He then lost an appeal.

If all issues have been settled out of court and the final hearing is basically a formality, both spouses may not need to be present. In some states only the spouse who filed for divorce needs to attend. Some states also allow the spouses in an uncontested case to file an affidavit of non-appearance or something similar. Then the judge will finalize the divorce without either of you present in court.

If you're not sure why you need to go to a hearing about your divorce, it's best to talk with a lawyer experienced in divorce cases. Don't just skip it without making sure you understand the possible consequences.

Avvo child custody email series

Sign up to receive a 10-part series of useful information and legal advice about the divorce process.

Can’t find what you’re looking for?


Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer