What is a Default Divorce in Alabama?
A default divorce is a divorce granted to the petitioner or the person who filed the divorce complaint without a trial or answer by the divorce defendant. Divorce begins in Alabama by filing a divorce complaint and filing the necessary filing fees for the county in which you file throughout Huntsville, such as Madison County, Limestone County, or Morgan County. Once a divorce petition has been filed and fees paid, the filing party must then serve the divorce papers on the non-filing party defendant. This is called notice, and it is what provides jurisdiction for the divorce court. Without notice, you cannot receive a divorce of any kind, not even a default divorce.
Once the filing party has served their defendant spouse, the spouse who has been served with divorce papers will need to respond within 30 days of they may be subject to a default divorce. If the defendant non-filing spouse does not file an answer to the divorce proceeding then they face default. The plaintiff can then file for default and a hearing will be held where the plaintiff gives testimony and essentially wins everything they want in the divorce.
It is the litigant's responsibility to keep track of their cases and it is not the court's responsibility to give notice of a default hearing. It is very important that divorce litigants keep track of their cases and consult an experienced divorce attorney as soon as possible after being served. In fact, if you know you are about to get a divorce or think you may be facing a divorce, it's always a good idea to consult a lawyer even prior to a divorce being filed.
Trial Court Has Broad Discretion to Set-Aside Default
A divorce decree usually becomes final 30 days after being entered by the court and you have even more time to file an appeal, or if any post-judgment motions have been filed. Trial courts generally frown upon default judgments because people should have their day in court. If a defaulted party can establish a meritorious defense, and establish that the opposing party will not be unduly prejudiced by the default being set aside they may have a good case to have a default judgment set aside.
Courts must presume that a divorce case should be decided on the merits, and not from a procedural rule, and the court must apply the three-factor analysis set forth in the Kirkland case. Most trial courts that refuse to set aside defaults are ultimately reversed.
Experienced Alabama Divorce and Family Lawyers
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