Default Divorce & Winning Custody by Default

After one spouse petitions for divorce — or a parent petitions for custody — the court expects the other to respond. A respondent "defaults" when they miss the deadline to respond to a petition.

The petitioner can then ask the court for a default divorce or custody judgment. Although having a default judgment made against you is not ideal, it is possible to overturn it.

What is a default divorce?

A default divorce grants the divorce petitioner a judgment without their spouse's involvement.

After receiving service, respondents have a deadline by which they must let the court know they will participate in the case. The petitioner can request a default judgment from the court if the respondent misses the deadline.

The petitioner must submit a proposed divorce judgment, which the judge will review at a default hearing (more below).

Some use the default divorce process as a roundabout way to get an uncontested divorce. However, turning in a settlement agreement and having both spouses participate in the case is much better because it protects both people.

Winning custody by default

You can win custody by default as part of a default divorce or in a case that is just about custody.

The court doesn't always grant default custody because it's typically in the child's best interests to involve both parents in the child's life. The input of both parents is often needed to create a workable and fair custody arrangement.

If you're scheduled for a default hearing, you'll need to create a proposed parenting plan to submit to the court.

What is a default hearing in family court?

A default hearing in family court is where you meet with a judge to discuss the terms of your proposed judgment.

The judge asks questions to ensure your proposals align with the law. For example, if state law requires you to split marital assets 50/50, your proposed judgment must reflect that. At a default hearing for custody, they make sure your custody terms are in the child's best interest.

The judge can make changes or approve the judgment as is.

Default custody order and default divorce timelines

Exact timelines for receiving a default judgment vary based on your court.

Waiting for the respondent's answer

The respondent typically has 20 to 30 days to file a written response or appear in court. The court may give the respondent more time, especially if the case involves custody.

Requesting a default judgment

If the respondent doesn't make the deadline, fill out and file your court's motion (request) for default judgment form. You'll also need to write out your proposed terms for divorce in a divorce judgment and for custody in a parenting plan.

Check with your court before filing to see when you can file. For example, in New York, petitioners must wait 40 days from the date of service.

Getting a judgment

You may have to wait a few weeks for your default hearing.

The judge may issue a judgment immediately after the hearing or at a later date. Waiting periods, which require your case to be on file for a certain time, are common in divorce cases. You may have to wait anywhere from 10 days to one year depending on your state.

Once a default judgment is issued, you must serve the respondent with the Notice of Default Order Issued for Divorce or Notice of Default Order Issued for Custody. Provide proof of service to the court.

If you've gotten a Notice of Default Order Issued for custody or divorce

Act quickly. You'll want to show the court you are ready to participate. Timing is especially important if there's a default custody judgment against you; the judge is less likely to overturn the order once the child settles into a routine.

You'll have anywhere from six months to a year to respond depending on your state.

Hiring a lawyer is recommended. If you cannot afford representation, look into free or low-cost representation available through legal aid.

Filing a motion to vacate

Fill out and file a motion to vacate (set aside) the default judgment. The clerk will schedule a hearing date. Send a copy of the motion to the petitioner along with notice of the hearing date.

The petitioner can contest your motion, presenting reasons why the judgment should not be set aside. You may file a reply.

Attending the hearing to set aside a default order

At the hearing, you and the petitioner will present evidence to support your cases for and against setting aside the default judgment.

The court will want to see evidence that you did not willfully ignore your chance to defend yourself in court. The court may agree to set aside the default divorce or custody judgment if you can prove:

• You didn't receive proper service.
• The petitioner used fraudulent means to convince you not to respond (e.g., false promises of reconciliation).
• You have another acceptable reason for not responding (e.g., military service).

In a custody case, you'll need a parenting plan proposal. Supplement your case with a parenting journal, photos, videos and other evidence of your role in your child's life and efforts to cooperate with the other parent.

If the default judgment is set aside, your divorce or custody case will restart.

Making your case for or against default custody

Whether you're in court to get a default divorce judgment or overturn one, you'll need to demonstrate you know what's best for your child.

The Custody X Change online app helps you prepare a parenting plan proposal that shows you have a clear vision for your child's post-separation life.

Including a custody calendar shows your commitment to keeping the other parent involved in your child's life — a key component of the child's best interest.

Take advantage of our technology to protect your parental rights.