What Is a Default Hearing?
Default hearings are where the court makes a ruling against a party that did not show up at a district court hearing to properly defend him or herself. Default hearings are distinct from trials and other district court hearings in that they are quick, easy, and generally end with the court making an order against the party that didn’t show up. These hearings are not an opportunity for the court to hear from both sides of the case, as they are typically one-sided. Therefore, clients who do not show up to court because they want to explain their side of the case may unnecessarily lose out on that chance to present their case.
For default hearings, the person who filed the Family Court paperwork in question shows up at Family Court on the scheduled hearing date and is prepared to go forward with the hearing as if the other party is not there. For example, let’s say that Julie filed for divorce from her husband Frank. Julie scheduled the divorce hearing for Tuesday at 10:00 a.m. Julie went to the hearing on Tuesday at 10:00 a.m. but Frank did not. Julie should still receive a favorable ruling in the divorce hearing, as long as she brought her proposed divorce order, was prepared to explain her position to the court, and there was proof that a copy of the divorce complaint was served on Frank.
The court may determine at the default hearing whether or not to grant Julie’s divorce . If Julie receives an unfavorable ruling from the hearing then she can object, or ask for a hearing de novo, on that hearing within 10 days. If Julie receives a favorable ruling, and Frank subsequently shows up for the hearing de novo, then Julie will have to also appear for that hearing unless she reaches an agreement with Frank before the hearing occurs. Of course, Frank has been given a certain number of days’ notice to appear before the court, and if Frank does not show up for the hearing de novo then the court will consider that in default as well.
Default hearings are also appropriate for motions that are solely for money. For example, if Julie files a motion for Frank to pay common expenses arising between the time the complaint for divorce is filed and until the entry of a final decree of divorce then the court may decide that during the default hearing. Money-related default hearings include motion for child support, spousal support, alimony pending suit, counsel fees, and equitable distribution releases. As a general rule, if the motion does not in any way result in a need for physical custody of children, or the return of any property to your physical possession, then the court will likely be comfortable holding a default hearing on the motion. As always, you should consult with experienced counsel to help make these determinations.
Why Do You Have a Default Hearing?
A default hearing may be scheduled for a number of reasons. In the vast majority of cases, however, the hearing is scheduled because the other party failed to timely respond to a request for temporary orders or a petition. A default hearing may also be scheduled if there is an emergency situation requiring a court order addressing a critical issue such as temporary custody of a child or the need for child support. In these instances, the party requesting the order must provide sufficient notice to the other party about the impending hearing.
Default hearings are often relatively quick. Even in the absence of an emergency, the party who filed the request or petition must still present evidence, including witness testimony, to the court in order to obtain a default judgment. A default judgment is an order by the court, without requiring the other party to respond. It is not up to the other party whether the request or petition is granted. Once the entry of any default judgment, that party is then required to comply with any provision of the order, just as if he or she responded when first served with the notice of hearing.
What Happens in a Default Hearing?
The issue of whether your spouse filed a pleading can become a contested issue. If, for example, your spouse files an Answer and Counterclaim and you never file a pleading in response (a Reply) or if your spouse files his/her Complaint for [divorce, custody, support, etc.] with a notice to you of the right to defend and you ignore it, then after a specific period of time has passed, your spouse can move the Court to hear the matter without you. Absent unusual circumstances, the Court will schedule a default hearing without providing you with any direct notice. Instead, in your spouse’s Motion, you will receive information as to when and where the hearing is to be held. You will also receive a copy of the proposed order your spouse wants the Court to sign after the default hearing. Your spouse will be required to provide you with actual notice of the hearing date. In many jurisdictions, a copy of the Order denying your Motion to Strike (if you file such a motion), Motion for Postponement and Motion for Continuance (if you file either of these), plus a return receipt from the postal service as evidence of that notice, will suffice. In many jurisdictions, however, personal service upon you of the actual service of the Order(s) denying your pre-hearing motions and the Notice of the Default Hearing is necessary. Because the consequences of a default hearing are potentially dire for you, you should attend the default hearing and present evidence in your defense. At a default hearing, evidence is taken regarding the specific matters in the underlying pleadings for which the hearing was scheduled. If the underlying action is for divorce and custody, evidence should be submitted as to both matters. If you are not present at the default hearing and evidence is heard for your spouse, the Court will make a decision based only upon that evidence. If you are present, the Court will give you the opportunity to present your defense, and your evidence can be heard. The Order resulting from the entry of a default at a hearing can be premised on the evidence presented by your spouse (or by you) and grant your spouse everything (as your spouse requests in his or her pleading) or it can be a decision by the Court on the basis of the questions raised in the underlying pleading for which the default hearing is held. Absent a legislative or appellate court decision rendering the de facto analysis one of predetermination of what the evidence would show, the latter more often occurs.
How to Prepare for a Default Hearing
If you have been served with notice of a default hearing, it’s in your best interests to gather relevant paperwork that might be useful in court and hire a qualified attorney to help make your case. Even if you have an excellent case , you may not want to represent yourself at a default hearing; your Ad Voice attorney will know how to adequately present your case in an efficient manner so that the results are optimal. After meeting with an Ad Voice lawyer, you will understand what types of documents should be obtained to properly represent your case at default hearing.
How to Avoid a Default Hearing
Perhaps the best way to avoid a default hearing is to timely respond to all pleadings that are served upon you relating to the case. The best way to do that, of course, may be to retain counsel to represent your interest in the case. Otherwise, as explained above, you will need to prepare the appropriate responsive pleading for the court pro se (without an attorney). This can be complicated. In addition to needing to determine what specific form to use, there are detailed filing requirements which must be followed. Further, the time frame in which you must make your appearance or file your responsive pleading may be very short. At some point, if you fail to respond, you may be found in default.
If you cannot meet the requirement of having an attorney represent your interest in the case, or if for some compelling reason you must represent your own interest, then you should consider contacting the opposing party or his/her attorney as soon as possible to determine whether they are seeking a default hearing and identify what their objectives are. Once you find out this information you will be in a much better position to try to avoid having one held. Remember, it is not uncommon for people to make mistakes in the heat of the moment. The other person may not really want to be so harsh. In some cases, such as where there has been a misunderstanding, they may even apologize and retract their request for a default hearing if you reach out to them – remembering that it is easier to resolve a problem by actually speaking to someone rather than by email or text.
Lawyers and Default Hearings
In many instances, a default hearing is not the final step in a family law action, but instead is simply a means to an end. If you have a judgment that is in default, you will not know what that order is until it is entered. There is always the chance that the other party has filed some kind of an opposition (Answer, Move to Set Aside, etc.) with the Clerk. Regardless, if you do not know whether it is worth attending the default hearing, and in some cases where the hand off to a default hearing has simply been delayed, having a lawyer attend the hearing will prevent an unrepresented individual from winding up with a result they do not want. Where the judgment is expected to be entered, a lawyer can go one step further. By way of example , if the lawyer will have the paperwork prepared ahead of time, the judge may allow for the order to be signed that same day. This can save considerable time and expense, in addition to the appearance. Regardless, as with all default hearings in family law matters, appointing a lawyer only serves to increase your chance of success. Make sure that when it comes time for your default hearing you have a skilled matrimonial lawyer representing you. Additionally, as with all court appearances, be on time, present yourself neatly and professionally, and answer all questions appropriately. Always remember that you are still subject to the Code of Professional Responsibility, even when you represent yourself.