What Is a Motion for Default in a Divorce Case in Florida?
By Anna Assad
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A motion for default in a Florida divorce case allows the person who filed the divorce petition, the "petitioner," to ask the court to grant her petition when the other spouse, or respondent, has failed to file an answer in court. Typically, the respondent "answers" the divorce petition by confirming or disputing the facts and terms set out in it. If the respondent doesn't file an answer, the motion for default lets the petitioner complete the divorce without the other party's participation.
A Florida motion for default form, Family Law Form 12.922(a), contains the case number, the names of both parties and the name of the county circuit court where the petition was filed. The motion contains a statement verifying that the petitioner delivered a copy of the petition to the respondent or his legal representation, how the petition was delivered and the date she sent it. She must give the name and address of the person she sent the document to as well as her contact information, and she must sign the motion. If she received help completing the form from a person who is not an attorney, that person -- referred to as a "nonlawyer" in Florida -- must fill out the bottom of the motion and give his name and address.
The petitioner can't file a motion for default until 20 days after he served notice of the divorce petition on the other spouse. Notice must be served on the other spouse personally in a Florida divorce case, and the server -- an uninvolved party -- must file proof of service with the circuit court. If the petitioner can't find the other spouse, he must use service by publication instead. He must place a notice in the legal section of a Florida newspaper -- state law permits him to chose the publication, but it must be in circulation -- for at least 30 days straight.
Once the petitioner files the motion for default in the Florida county circuit court, the court clerk typically signs the motion as long as all court rules were followed. The petitioner can ask the court to schedule the last hearing on the divorce case as soon as the motion is granted, but she must send notice of the hearing to the respondent by personal service or mail.
At the same time the petitioner files the motion for default, he must also submit Form 12.922(b), Default. The top section of the default form is signed and dated by the court clerk after he signs the motion, but the petitioner must fill in the case information, her name and address, and the name and address of the other party. Any assisting nonlawyer must enter his information, and the petitioner has to sign the lower part of the form. The petitioner can still request a trial instead of a hearing when filing a motion for default, but a trial is typically not necessary if the other party isn't participating in the proceedings.
Anna Assad began writing professionally in 1999 and has published several legal articles for various websites. She has an extensive real estate and criminal legal background. She also tutored in English for nearly eight years, attended Buffalo State College for paralegal studies and accounting, and minored in English literature, receiving a Bachelor of Arts.