Most divorcing couples discuss the situation ahead of time, including who will file the complaint, and how the other will respond. However, discussions may not be possible when spouses are not on speaking terms, or prohibited from contacting each other through a restraining order. Another problematic situation is when couples have lived apart for a long time without divorcing. It's not uncommon in these cases for the spouses to lose contact, especially if they live in separate states or countries. While losing contact with your former partner isn't necessarily a bad thing, it can create certain legal snafus when it comes time to divorce.
New Jersey law requires the complainant (the one filing for divorce) to serve his or her spouse with a copy of the complaint within 10 days of the filing date. The spouse has 35 days to respond, after which the complainant may petition the courts to grant a default judgment. Some people deliberately choose not respond for reasons such as spite, unresolved feelings or religious/ cultural beliefs. Others agree not to respond so that the other person can proceed with the default filing as soon as possible. If you've worked out all the issues in your divorce, and wish for things to end as quickly and cheaply as possible, this might be a good solution.
It may, however, be a whole different story if you never received the complaint due to reasons beyond your control. If there are unresolved property, alimony and/or child support issues between you and your spouse, a default judgment could result in you ending up with much less than you deserve. There's no need to panic, though; default judgment are not automatically granted because you failed to respond. In addition to moving, you may have been hospitalized, been away on a work assignment, or have some other valid reason for not receiving the summons. By the time you come back home, or someone manages to get in touch with you, it may be too late to respond to the complaint.
With this in mind, the court begins the process by holding a default hearing, which you will be notified of in writing. The notification will include a copy of the proposed judgment, which you should discuss with an experienced divorce attorney. Your attorney can also advise you of what will happen at the hearing, at which you will need to state the reason for your failure to respond. If the judge feels that your reason is legitimate, the judge may reschedule the hearing in order to give you time to prepare. If you fail to appear, you can still attempt to have the default judgement vacated (set aside) if you can show good reason for your failure to appear.
For more information on default judgments, please speak with the divorce attorneys of Villani & DeLuca, P.C. Our lawyers will be happy to advise you of your rights and legal options during a free initial consultation.