You can’t get married without the participation of your intended spouse, but in North Dakota and Minnesota, you can get divorced without it. In other words, you cannot prevent your spouse from divorcing you (and your spouse cannot avoid divorce) by simply ignoring the process. If one party files for divorce, serves the summons and complaint (North Dakota) or summons and petition (Minnesota) on the other spouse, and the other spouse does not respond, the first spouse (the plaintiff/petitioner) can pursue a default judgment.
Courts can grant a default divorce to prevent an unwilling participant from throwing up a roadblock to the legal process. As long as the plaintiff/petitioner followed the rules for filing the divorce papers, and service of process, the case can continue with or without the defendant/respondent’s involvement. If the defendant/respondent does not file an answer within 21 days (in North Dakota) or 30 days (in Minnesota) of service, the plaintiff/petitioner can file a Motion for Default Judgment.
A default is simply the court's determination that a defendant/respondent was properly given notice of a lawsuit and the opportunity to respond, and failed to do so. As a result, the lawsuit can proceed without their input. It is within the court’s discretion to set aside a default and allow a defendant/respondent to participate in a divorce or other lawsuit, but if you are the defendant/respondent, you should not count on the court’s willingness to allow you to “opt back into” your divorce proceedings.
If a defendant/respondent doesn’t answer within the specified time frame, the plaintiff/petitioner can file a Motion and supporting affidavits and documents requesting a default judgment. Not only will the entry of a default allow the court to grant the divorce itself, but the court may also grant any or all other claims for relief including the plaintiff/petitioner’s preferred child custody arrangement, parenting time schedule, division of property, and spousal support.
Before entering a judgment, the court will require proof that will allow it to grant the plaintiff/petitioner’s requests. There may be a hearing at which the court may receive evidence such as financial documents and take testimony from the plaintiff/petitioner or other witnesses. In certain instances, a hearing may not be required if all the information, including a proposed parenting plan and/or child support calculations, are submitted by affidavit, exhibit, and if proposed Findings, Conclusions and Order is filed.
If a defendant/respondent in a divorce action takes more than the 21-day or 30-day time frame to file an answer and counterclaim or counterpetition, they can still be found to be in default and the court could still enter a default judgment in the plaintiff/petitioner’s favor. This, however, is unlikely. Courts have a strong preference to dispose of and resolve cases “on the merits” rather than by default. This means the courts have a preference to decide cases by mutual agreement or at least with the input and participation of both parties involved.
In fact, it is not uncommon for the courts to accept and consider slightly late, moderately late, or very late Answers to a divorce Complaint or Petition, even though the responding party is clearly in default.
Allowing a default to be entered can mean that a divorce will be granted more quickly. If you are the defendant/respondent, not responding to a complaint/petition for divorce means that you can avoid the attorney fees that come with preparing an answer. Following this reasoning, some people ignore their divorce papers, figuring that they’ll get divorced “for free.”
When you allow a divorce by default judgment to be entered against you, you give up all control over the outcome of your divorce. Even if you have spoken with your spouse and reached a verbal agreement, you have relinquished your legal right to weigh in on the matter in court and are at the mercy of what your plaintiff/petitioner spouse requests in a Motion for Default.
If what you want is to simplify your divorce, there are better ways to do it than by allowing a default judgment to be entered. If you have reached an agreement with your spouse about all issues, you can file for an uncontested divorce indicating your agreement or can file a signed, written Marital Termination Agreement simultaneous with the other initial pleadings.
If you are unable to reach agreement with your spouse, all the more reason to avoid your spouse getting a default judgment against you. Divorce judgments are typically difficult to set aside. It is much better to have an experienced North Dakota and Minnesota divorce attorney advocating for you before your divorce is final than to try to fix problems afterward.
Don’t give up your rights to participate in the legal process. Contact Fremstad Law to schedule a consultation. If you have already been served with divorce papers, you don’t have any time to waste.
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