In New Jersey, once someone files for divorce, they have 30 days to ensure the other party is served with the necessary documents, including the divorce complaint. Being served with a Complaint for Divorce can be a devastating moment in a person’s life because they now have an official legal notice that their spouse (the plaintiff) wants to break away, turn their back and start a new life.
As is human nature, the person being served (the defendant) might push the Complaint aside or possibly bury it underneath other papers, not wanting to deal with it. However, ignoring a Complaint for Divorce is a costly mistake that can result in permanent consequences for the Defendant.
Under New Jersey rules, a Defendant served with a complaint has 35 days to respond. These 35 days start running on the day that the Defendant is served, and weekends and holidays count towards this time. If the Defendant fails to respond to the Complaint within these 35 days, they are considered “in default”.
Once a Defendant is in default, they can expect the Plaintiff to file for Default Judgment, asking the court to proceed with the divorce. The Plaintiff will need to provide proof that the other party did receive the Complaint; once Proof of Service has been presented to the court, the Plaintiff and their attorney can proceed with the divorce and will be assigned a date for a default hearing.
20 days prior to the hearing, the Defendant should be served again—this time with a Notice of Proposed Final Judgment and Equitable Distribution. This notice is served if the original Complaint for Divorce requested judgment regarding:
In an application for Default Judgment, the Plaintiff essentially asks the Court to grant all relief requested by the Plaintiff without allowing the Defendant to challenge these requests or respond in any way. If a Notice of Equitable Distribution and Custody/Support is filed, this relief requested can go way beyond the dissolution of the marriage and can include alimony, the distribution of assets, counsel fees, child support, and even an Order establishing custody of children.
If the requested relief is granted, the Court can award the Plaintiff everything that they ask for without getting any input from the Defendant. That means the Defendant can pay alimony and child support to their spouse, pay their spouse’s attorney’s fees, and give up the property from the marital estate without ever getting any say in the matter. It means the Defendant can end up on the wrong end of an extremely lopsided custody arrangement without having ever been heard on the matter.
So, what should you do if you are the Defendant in this situation? The first thing that any person should do once served with a Complaint for Divorce is to immediately seek legal counsel. If counsel is retained in short order, an Answer/Counterclaim can be filed in a timely fashion, allowing the Defendant to challenge any relief requested by the Plaintiff in the Complaint.
But what if the 35-day response time has already passed, and the Defendant has already been served with a Notice of Equitable Distribution and Custody/Support? Luckily for the Defendant, all is not lost just yet. If the Defendant immediately retains counsel, a motion to Set Aside Default can be filed. Under this motion, defense counsel argues that even though the Defendant failed to respond to the Complaint within the allotted time, they should still be permitted to file a response out of time and be able to challenge the relief requested by the Plaintiff.
The success or failure of this motion depends on several factors, including why the Defendant failed to respond and how long the Defendant has been in default. If the motion is granted, the Defendant is permitted to file an Answer/Counterclaim and the case proceeds as normal.
So, while all is not lost if a Defendant finds themself in default, it is certainly easier and safer to retain counsel as soon as possible so that a proper response can be filed promptly and extra motions do not have to be litigated and a Default Judgment is never even a possibility.
At Davé Law Firm, our legal team is equipped to help you fight to protect your interests and rights. If you have been served with a Complaint for Divorce, we can work with you to:
To schedule an initial consultation, contact us today at (609) 554-7511.
