If one spouse files a complaint for divorce in New Jersey, the court can grant the divorce even if the other spouse doesn’t answer the complaint or appear in the case. This is called a “default” judgment of divorce. The spouse filing the complaint (the “plaintiff”) must serve a copy of it on the other spouse (the “defendant”) and wait 35 days. If the defendant spouse fails to answer within that time, the plaintiff then has 60 days to file a request asking the court to grant the default judgment. Because members of the United States military are legally protected from default judgments, the plaintiff will also have to file an affidavit with the complaint verifying that the defendant is not in the service.
Default Divorce by Agreement
Sometimes spouses who have resolved all issues in their divorce decide between themselves that one of them will file a complaint and proceed with divorce by default. This saves the other spouse the time and expense of filing an answer. If you and your spouse decide to proceed by this method, you should also prepare a marital settlement agreement and sign the agreement after each of you has consulted with a separate attorney.
Default Divorce without a Court Appearance
There are several counties in New Jersey that will allow a default divorce by agreement without a court appearance. The spouses must submit a signed settlement agreement and comply with the exact requirements of the particular county. These will generally include submitting a certified statement that includes the answers to the questions that the judge would ordinarily ask in person at a default hearing. To find out whether your county permits default divorce without a hearing, and to make sure that you understand the exact requirements, contact an attorney or the family division of your local county court. The New Jersey court system maintains contact information for all Superior Court Family Division Offices.
Unless you have satisfied the requirements for proceeding to default without a court appearance, the court will set a date for a default hearing after receiving the complaint, and the plaintiff must serve the defendant with notice of the hearing date and a proposed final judgment of divorce. If you have a signed settlement agreement, you can attach it to the proposed final judgment. If you are the plaintiff and you do not have a settlement agreement and want the judge to make decisions in your case, you will also have to serve a notice of application for equitable distribution of property (with a statement of assets and debts), and notice of any other relief requested, such as alimony or child support. You must serve all notices on defendant at least 20 days before the hearing, either by regular and certified mail with return receipt requested, or by another method such as personal service. You will need to present proof of service at the hearing.
The plaintiff then attends the default hearing. If you and your spouse are proceeding with default by agreement, it is a good idea for both of you to go. If you have a signed settlement agreement, the judge will ask a few basic questions to make sure that you understand your rights and then will usually accept the settlement agreement and make it part of the divorce judgment. The judge will not ask any questions about the terms of the agreement or make any judgment regarding its fairness. Questions will include such things as whether both of you entered into the agreement knowingly and willing; whether you both consider it to be fair; whether it resolves all issues in your case; whether you understand that you are waiving your right to a trial; and whether you are satisfied with the legal services provided to you.
Continuing the Hearing or Vacating the Default
Before granting a default divorce, a court will want to be sure that both spouses have had a fair chance to be heard. If you do not have a signed settlement agreement, and the defendant did not respond to the complaint, but appears at the default hearing with a reasonable explanation, the judge may continue (delay) the hearing to a later date to give the defendant more time. Sometimes a court will even set aside or "vacate" a default judgment if the defendant submits a request for this after the hearing, along with a good explanation for the failure to answer the complaint or appear in court.