What Is the Purpose of Default Hearings?
Default hearings can happen in civil (non-criminal) cases and start when a plaintiff or petitioner files a complaint or petition with the court. In the complaint, the plaintiff outlines what they want and identifies the defendant. They also request the court issue a summons or citation that notifies the defendant of the petition and the need to defend themselves.
However, defendants sometimes fail to respond to the petition within the required timeframe. In that case, the plaintiff may request a default hearing in which the court grants the petitioner’s requests without the respondent’s involvement. Skilled lawyers from a family law firm in San Antonio can provide more insight into what happens during default hearings.
What Happens if the Defendant Doesn’t Show Up in Court?
If the defendant fails to attend the trial, the plaintiff can request the court to grant a default judgment against the defendant even if the defendant previously filed a written answer. However, for the judge to grant a default judgment, the plaintiff must first prove the following:
- Reasonable probability that the defendant was served with a summon to appear in court.
- A sworn statement that the defendant was served has been on file with the court for at least 10 days and the deadline to answer has expired without a proper answer.
- The plaintiff knows that the defendant is not on active duty in the military, the defendant can read, write, and understand English, and the defendant has no legal, physical, or mental impairment that would prevent them from understanding the nature of the proceedings.
Skilled divorce lawyers in San Antonio can help you file a petition if you need clarification on how the process works. They also know the procedures to serve the defendant and can help you prove you served the other party. Then they can help you by writing the final order and setting the default hearing before a judge.
Proving That I Served the Other Party According to the Rules
Once you serve someone, you should get one of the following back:
- A green card signed by the other party from the post office
- A return of service from the process server
Either of these documents could be your proof of service. Ensure you keep it in a safe place and present it in court when required.
What If You Don’t Know How to Find the Defendant or the Defendant Avoids Service?
If you honestly do not know how to find the Defendant, you must prove to the court that you have made a reasonably diligent search to locate him or her, including searching social media and questioning friends and relatives. Sometimes a private investigator may be hired to find that person.
But if the Defendant still cannot be located, or if the Defendant deliberately hides from the process server and refuses to accept mail service, then the lawyer can get an order for service by alternative methods such as publishing notice in a newspaper or posting notice at the courthouse. Therefore, a default judgment is possible even if the defendant never saw the notice.
What is Default Judgment in Divorce?
In some divorce cases, the spouses agree to go the default route. That means they plan for the judge to give a decree in favor of the plaintiff if the respondent fails to participate or appear in court. However, divorce lawyers in San Antonio, TX, advise that the approach can be risky, especially for the defendant, as it denies them an opportunity to protect their rights.
For example, the defendant loses the opportunity to object to unfavorable terms in the divorce. They also may not fully understand all of the plaintiff’s requests in their divorce filings. Working with skilled divorce attorneys to review the paperwork and ensure everything is as you agreed with the other party is essential.
How Can I Schedule a Default Hearing
You file a request for a default hearing if the other party doesn’t respond or you can’t find them. However, the court may require that you use several methods, such as newspaper ads, to locate the defendant and inform them of the proceedings. The judge may grant you relief by default if these exhaustive methods don’t yield results.
In filing your request for a default hearing, your San Antonio divorce lawyers can oversee the process and help you do what is required of you at each of the following steps:
- Filing and serving the divorce papers
- Waiting for your spouse to respond
- Filing a request for default if there is no response within the required deadline and the petition has been on file at least 60 days
- Attending the default hearing to help you present required testimony
- Helping you with affidavits about your attempts to locate the defendant, the affidavit of defendant’s last known address, and the affidavit to deny defendant is actively serving in the military
- Finalizing the written divorce decree and property transfers
- Notifying the attorney general of any child support orders and filing the vital statistics form
- Notifying your spouse
Documents Required When Filing a Request for Default Divorce
Your divorce lawyers can assess your request to ensure you attach the following:
- All information in the caption exactly as it is on the complaint
- Certificate of Service for the Request for Default Judgement
- A proposed judgment by default, depending on what the plaintiff would want the judge to provide in the final ruling
When to Enter Default Divorce
Various situations arise when divorcing parties can enter a default divorce:
- When the other party is missing or refuses to cooperate
- When the plaintiff wants to save costs on the divorce proceedings
- When there is a sense of urgency, and the plaintiff needs to simply the process, if they qualify for a default divorce. However, the respondent must be served at each stage of the process and be given a certain amount of time to respond to the notices before moving ahead.
- When the plaintiff would like to have some level of confidentiality during the proceedings. In default divorce, the plaintiff doesn’t need to submit detailed financial information like they’re supposed to disclose in the divorce process.
Consult skilled Texas divorce attorneys to help you evaluate if a default divorce is the most suitable option. You might find that it wouldn’t be favorable for you because of the risk of waiving certain rights you might not even know you had during the divorce proceedings.
Legal Counsel on Default Hearings in San Antonio
Divorcing spouses may sometimes enter default divorce if one party doesn’t respond to the petition. It also works in uncontested divorces, where both parties agree on the outcome of the divorce. However, before entering a default divorce, it’s essential to consult experienced lawyers from a top-rated family law and estate planning law firm in San Antonio for counsel. Failure to do the process correctly could result in the divorce being reversed later.
Laura D. Heard Law Firm Inc. hosts knowledgeable divorce lawyers in San Antonio who can tell you everything you need to know about default hearings in divorce cases. We are dedicated to making divorce less stressful for our clients and can walk with you through this journey while fighting for the most favorable outcome. Call us at (210) 775-0353 to schedule a case assessment.