The Pros and Cons of a Default Divorce

A default divorce may be a simple way to end a marriage, but it may have some serious pitfalls.

By , Attorney

The specific steps and forms required to complete a default divorce vary slightly from state to state, but the basic principles are the same – the spouse asking for a divorce files a divorce complaint (also called a petition in some states), the other spouse (the defendant or respondent) fails to answer the complaint or appear in court within the specified amount of time, and a divorce judgment is entered against the defendant spouse. Sounds pretty simple, but a default divorce has its pros and cons: we'll go over a few of them below.

How Do I Pursue a Default Divorce?

Many state-court websites have self-help family law sections with links to court forms and step-by-step instructions on how to pursue a default divorce. If your state doesn't, you should head to your local courthouse to find out where the closest self-help family law center or family law facilitator's office is located – divorce forms are usually available at these types of self-help centers.

Once you have your divorce forms filled out, you must "serve" (deliver) the divorce paperwork to your spouse using one of the accepted methods of service in your state. If your spouse fails to answer in time, you can appear in court and ask a judge to enter all the divorce orders requested in your complaint.

What Are the Pros of a Default Divorce?

Some people like to use the default method because it allows them to obtain a divorce without paying much in the way of attorney's fees or court costs for appearing at hearings and trials. And with a default, you don't have to produce any financial information regarding your income and assets, such as paystubs, tax returns, bank statements, and other account statements – all of this information must be disclosed in a regular divorce.

Some divorcing couples actually agree (in advance) to a default divorce. They decide that one spouse will be the filing spouse and will ask the court to issue specific orders (orders that the couple has privately agreed to include in the complaint), and the other spouse will not respond so that the court can grant the divorce. In this way, the couple can resolve all of their divorce issues outside of the courtroom (with or without the help of consulting attorneys). This allows the divorce to proceed quickly and confidentially, without any gut-wrenching or humiliating public hearings and trials.

What Are the Cons of a Default Divorce?

There are some unsavory divorce lawyers who use the default process to try and pull a fast one on an unknowing spouse. They do this by intentionally serving the divorce papers on the defendant spouse in a way that all but assures he or she won't receive the papers in time to respond.

Even the agreed-upon default divorce mentioned above carries some risk. The defendant spouse may not completely understand what's being requested in the divorce complaint or may fail to realize that by not responding, he or she is completely giving up his or her rights to contest the court's orders.

These are some serious rights to give up so if you've agreed to do this, be sure you know exactly what the complaint says. You may want to ask a consulting attorney to review the paperwork and meet with you to be sure a default is appropriate in your case.

On the other hand, most states allow a default defendant some period of time after the judgment is issued to ask a court to set-aside (overturn) the default judgment. If the defendant spouse can show a good reason for having it overturned, then the divorce starts again, from the very beginning. So, a default divorce is not necessarily a sure thing, and may turn out to be a waste of time.

Getting Help

If a default judgment for divorce has been issued against you, you may still have time to contest it and have it set aside, but you will need to speak to an experienced divorce attorney right away.