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Don't Ignore Your Case! Part I

Posted by Gina Colaluca | Nov 22, 2017 | 0 Comments

Your spouse has filed for divorce. You received papers indicating you need to file your appearance and a response to the complaint within thirty days. You don't feel you can afford an attorney and you're not sure what the documents mean or what you are supposed to do. This is the unfortunate reality many people face when served with divorce papers. Although this situation can be extremely overwhelming, it is important to remain calm and do something as opposed to doing nothing. Even if you are going to proceed without an attorney, it is very important that you remain involved in the case and do not ignore the proceedings because, if you ignore the proceedings, they may (and likely will) continue without you.

Under the law, if your spouse has properly served you with divorce papers and you do not appear in the case or respond to the Petition for Dissolution of Marriage within the time provided on the paperwork, your spouse can ask the Judge to enter a default judgment against you for your failure to timely appear and respond. The default judgment will address any and all issues that may be appropriate to address in your case, such as dividing your marital property, dividing your debts, awarding any non-marital property to the appropriate party, finalizing custody of your children, and awarding child support and maintenance based upon the circumstances. As a result, a default judgment is just like any other judgement that could be entered in the case after trial, except for one important difference: the default judgment can and likely will favor the party who filed for divorce. For example, say you have been served with divorce papers, but choose to ignore them. After waiting the appropriate amount of time, you fail to appear, and your spouse asks the judge to default you. The Judge will then ask your spouse to prepare a proposed default judgment that addresses all of your property, custody of your children, child support, and maintenance, send you a copy and, if you don't respond, the judge will ask you to present it to the court for entry. Your spouse will then prepare a proposed judgment and send you a copy. Who do you think the proposed judgment is going to favor - your spouse, who is drafting it, or you, who failed to appear and is not cooperating with the case? 

Now you may think a judge wouldn't enter a one-sided judgment against you even if you fail to participate because doing so would be unfair. In some extreme cases, you might be right, but in my experience, in most cases, you would be wrong. It is not the judge's job to watch out for you or your spouse. It is the judge's job to follow the law and sometimes, the law can seem unfair. If you fail to appear and participate in the case, the law simply allows the judge to default you and to enter a default judgment against you. Even though your spouse would more than likely propose a self-serving divorce judgment upon defaulting you, the judge can enter it, provided it is not so unreasonable that the judge would deem it unconscionable. For example, your spouse could ask for sole custody of your children and child support without your cooperation and, provided it would not be unreasonable to grant such a request in your case, the judge can grant your spouse's request based upon (1) your spouse's representations to the court and (2) your failure to appear and contest the arrangement. As a result, although it can be overwhelming, it is very important to be involved in your case if you have been properly served with divorce paperwork. If you have been served with divorce papers and are not sure what to do next, feel free to contact our office at 312-648-6115 for your free consultation.

About the Author

Gina Colaluca

Gina L. Colaluca began working as an Associate Attorney at the Law Offices of Laura A. Holwell in 2013, where she focused her practice mainly in Family Law. She now continues to focus on Family Law, as well as Insurance Law and Appellate Law, here at Holwell Law Group, LLC.

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