Divorce Defaults

I am an attorney that practices law in Middle Tennessee. www.jamesphillipslaw.com.  If you need self-help legal, go to invisiblelawyer.com.

Many of my clients are very concerned about the length of time that it takes to get a default judgment. They see this as the quickest and easiest ways to get rid of a troublesome spouse.  In a divorce, a complaint is filed with the court.  After the complaint is filed, the complaint must be “served” on the defendant spouse.  This can be accomplished in a variety of ways, but basically what this means is that the complaint for divorce must reach the hands of the defendant.  Once the defendant has the complaint, they have thirty days to respond or they are subject to a default judgment.

The default judgment can be both a good and bad thing.  In Tennessee, default judgments are looked upon by the Courts with disfavor.  This means the preferred method of resolving cases is that they are either settled through agreement by the parties or they are litigated in front of a judge who will render a final decision.  Because of this, many default judgments are thrown out by the opposing party getting an attorney and filing a rule 59 or rule 60 motion to set the final decree aside.

A default judgment in my county, Montgomery County, is a pretty easy thing to get.  If the defendant does not show up, the court has a hearing where the plaintiff, my client, will testify to the basic correctness of the complaint and establish fault.  The plaintiff will bring two witnesses who testify to the truth-fullness of character of my client and after they ask the court for what they want and establish the fault, the hearing is over and the divorce is granted.

This may not go so well if the other party shows up to contest the default.  Although I have seen judges go forward and grant the default judgment even if the opposing party arrives at the hearing, generally, they will stop the default and give the opposing party a week or so to file their response to the original complaint.   If an attorney is hired, they can whip up a response to a complaint in just a few minutes to defeat the default.

Also, when I am getting a default judgment for my client, I always suggest that they not try to bury the other party.  I will usually suggest that the Parenting Plan is fair and would not seem overly coercive.  This is because even in a default judgment the Judge has a requirement to keep the best interest of the children in the forefront.  Also, any request for alimony or a complete grant of all property can be looked upon with disfavor from the Judge.  The judge may not feel that they can make this kind of ruling without the other party being there.

All in all, a default can be a quick and efficient way to get a final decree in a Tennessee divorce.  The problem is that they are still subject to attack later.  They can be defeated at a hearing on the cause and they do not grant the complainaint everything they might otherwise get at a contested divorce trial.

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