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Default Divorce

Fotolia_96795994_XS.jpgIf one spouse files for divorce in New Jersey, the court can grant the divorce even if the other spouse doesn't answer the complaint or appear in the case. This is called a "default" judgment. The spouse filing the complaint must serve a copy of the judgment on the other spouse and wait 35 days. Service on the other spouse is what gives the court jurisdiction over the case to issue a judgment.

If the defendant spouse does not answer, the Plaintiff must request that the court grant a default judgment. Because members of the United States military are legally protected from default judgments under the Servicemember's Civil Relief Act to a certain extent, the plaintiff will also have to file an affidavit with the complaint verifying that the defendant is not in military service.

Sometimes spouses who have resolved their divorce issues decide to proceed with a default divorce. An advantage of this is that the other spouse does not have the time or expense of filing an answer. If you and your spouse consent to proceed by default, you should prepare a marital settlement agreement after consultation with separate attorneys. It is always preferable to have both Plaintiff and Defendant present in Court to place the uncontested divorce on the record. Each party is asked numerous questions under oath as to the voluntariness and understanding of the agreed upon terms.

The court will then set a hearing date. The plaintiff must serve the defendant with notice of the hearing date and proposed terms to be incorporated into the Final Judgment of Divorce. If you have a signed Marital Settlement Agreement, you can submit it with the proposed final judgment.

If you are considering divorce, consult with an experienced family law attorney to assess your options.

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Cohn Lifland Pearlman Herrmann & Knopf LLP
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