A divorce can be one of the most overwhelming and traumatic events in a person’s life. I know firsthand as an experienced New Jersey divorce attorney for over twenty years that the divorce process can be long, tiring, and expensive. Constantly I have clients coming to my office worrying how they will pay their bills during the divorce process, especially if their soon to be ex-spouse is taking his or her sweet old time to answer the divorce complaint. Not every couple has a high net worth and can afford to keep waiting for their divorce to be over. When this is the case, my clients simply ask, “What on earth can I do?” My advice is to file for a “default.” Let’s explore.
About four years ago I had a client come to me asking for help. He had obtained me as his lawyer to represent him in his divorce proceeding. The complaint for divorce was timely filed on our end, but his soon to be ex-wife was just not responding to it. Upon our initial client-attorney interview, I had been informed that this was definitely going to be a bitter divorce. Naturally, I figured that the couple had a lot of money and assets that would cause the equitable distribution phase to be tumultuous. Yet, to my surprise money was not even the issue. And might I add, the couple did not have kids so support and custody were not coming into play either. Instead, my client simply wanted out, and his wife did not plain and simple. So, when she was served the complaint, she just didn’t respond because she didn’t want a divorce.
This really aggravated my client and I. I knew that once I had filed the complaint for divorce, the court was immediately put on notice of the case. And to top it, if my client’s soon to be ex-wife did not timely respond, the case was going to be dismissed. That meant that if my client wanted to serve her with a new complaint, he would have to pay all over again and money was starting to get tight. Obviously, my client’s wife could not keep this act up forever. It’s not like the New Jersey courts could actually force the couple to stay married. Rather, the idea of defaulting during the divorce proceeding became the hot topic of discussion between my client and myself.
The case on point in New Jersey that discusses the strictures that oversee a request for a default is Clementi v. Clementi, 434 N.J. Super. 529 (Sup. Ct. Ch. Div. 2013). In Clementi, the plaintiff and defendant were married in 1973 and lived together for almost forty years. No children were born of the marriage. On March 28, 2013 the plaintiff filed for a no-fault divorce. On April 29, 2013 the Ocean County Sheriff’s Department served the defendant with the divorce complaint. The defendant did not respond to the complaint within the required thirty-five day period. Thus, the plaintiff filed a request to enter default on June 7, 2013. Again, the defendant did not respond with a motion to vacate the default so the proceeding was set for August 13, 2013.
On July 3, 2013, the plaintiff served the defendant with a notice of final judgment requesting specific equitable distribution of the assets and debts. Additionally, the plaintiff filed and served the defendant with a detailed Case Information Statement pursuant to New Jersey Court Rule 5:5-10. The defendant once again did not respond. The Court discussed Rule 5:5-10 in more detail when determining whether or not to grant the outcome that the plaintiff had sought. Pursuant to the Rule, in cases where equitable distribution, alimony, child support etc. are sought and a default has been entered into, the plaintiff must file and serve the defendant a notice of proposed final judgment within twenty days of the default hearing date. The notice must include informing the defendant of the trial date, the appraised value of each of the assets and the amount requested to be distributed, etc. Additionally, the plaintiff must attach a completed Case Information Statement.
While the plaintiff in Clementi did take all of the formal steps to have the case decided in the way she had hoped, it is important to note that the court still had and has a duty to review the request to ensure fairness. The court stated, “Even in a default proceedings where the defendant does not appear, the court must still be inquisitive in analyzing the fairness and reasonableness of the plaintiff’s request...especially if the request seems to be skewed in favor of the participating party.”
That is why I stress to my clients the importance of carefully drafting a proposed final judgment when entering the default process for their divorce. This is an extremely fact specific area of the law and the court will look to all of the evidence presented when determining whether or not to grant the participating party’s request. If it isn’t granted, the court will likely reschedule for a new hearing, like what happened in Clementi, and the participating party will carry the burden to prove why he or she should be granted the outcome he or she desires. For more questions on the default process in New Jersey divorces, please contact my office today. Thank you.