What is a Motion for Default?

By Jedidiah McKeehan

Occasionally I will have a potential divorce client call me and say something like, “They told me they would not give me a divorce, what can I do to leave this person?” Thankfully, you do not need the other person’s involvement in a case to get a result awarded to you from the court, whether the case is a divorce case, a contract dispute or a personal injury matter.

How can that be? Particularly in a divorce case. By law, when you file a lawsuit, you have to serve the Defendant with a document called a Summons and a copy of the lawsuit you have filed. The service of these documents is usually done by a private process server or the Sheriff’s Department, although you can also accomplish it by certified mail.

Once the Defendant is served, the person who served the Defendant will turn into the court proof that the Defendant was served. By law, the Defendant has 30 days to file a written Answer with the Court responding to the lawsuit. The Defendant cannot say they did not know they were not supposed to respond because the Summons that the Defendant receives has this written on the top of the first page.

If the Defendant does not file an Answer with the court within 30 days of receiving the paperwork then the Plaintiff (the person who filed the lawsuit), can file a Motion for Default. This motion basically says that the Plaintiff should win by default because the Defendant has not bothered to respond to the lawsuit against them. This actually happens a whole lot. A large percentage of people sued for credit card, payday loans and medical debt do not bother responding to lawsuits against them for these debts.

When a Motion for Default is filed, the Plaintiff must mail a copy of Motion for Default to the Defendant notifying them of the Motion and on what court date the motion will be held.

Then, if the Defendant does not show up for the hearing on the Motion for Default, the Plaintiff is awarded whatever they requested in their lawsuit. They have just won by default.

Courts do not prefer to handle matters through motions for default if they can avoid it. They would prefer both parties to a lawsuit appear in court and tell their sides of the story and then the court can make a ruling. So motions for default are considered disfavored in court. However, they allow lawsuits to be resolved even if the person being sued refuses to participate.

So, yes, you can get a divorce through a motion for default even if the other person will not, “give you one.”

 

Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties.  He works in many areas, including divorce, custody, criminal, and personal injury. Visit attorney-knoxville.com for more information about this legal issue and other legal issues.

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