February 18, 2016
If you’ve been gathering information about the divorce process in Maryland, you may have come across the term “order of default.” This is one of the legal terms that may not be entirely clear on its own. Does the default have to do with bankruptcy? Or is this “default” as in “restore to default settings?” Actually, it’s neither, but we’ll be happy to explain this term and the circumstances behind it.
Standard Divorce Process
Before we jump to the order of default, let’s first make sure that you understand how a typical divorce works. When you are ready to file for divorce, you determine which divorce ground(s) you want to use. Then you fill out a complaint for divorce and file it with your county’s circuit court. Then you must make arrangements to have a third party serve your spouse, so that they know that divorce has been initiated. Your spouse then has a certain amount of time to respond to your complaint for divorce, either confirming it, denying or filing a counter-complaint. After that, a settlement or scheduling conference, or a hearing will be scheduled where the court will listen to both parties and finalize a divorce.
Of course, this is a very simplified representation and a lot of things happen in between!
Default Divorce Process
But let’s not forget that divorce doesn’t always go the way books describe it. Sometimes an uncooperative or unresponsive spouse may complicate things by not providing the information the court needs to proceed with granting your divorce. In this case, an order of default may be requested.
The order of default allows the court to issue a default judgment even if your spouse is MIA. This means the divorce is granted and your spouse may have no say in the outcome. Again, this is a very simplified representation of what takes place, and there are additional steps prior to the entry of a default.
There are several situations when an order of default may be used.
What if you are unable to serve your spouse with the divorce complaint? Maybe you are filing based on desertion and you haven’t seen or talked to your spouse in over a year? Does this mean you can’t get a divorce? No. There are alternative means of effectuating service of your divorce complaint on your spouse, and once you do and no response is made by your spouse, that’s when the order of default comes in.
In order to qualify for the order of default in this case, you need to make reasonable efforts and a “diligent search” to locate and serve your spouse. These efforts may include contacting the Maryland MVA for your spouse’s current address, talking to friends and family, searching the internet and social media, and even hiring a private investigator if it is within your means. You may have to show the proof of your search activity before alternative means of service of the complaint can be approved and an order of default can be granted.
But let’s say you did manage to serve your spouse and even have the proof of service. However, the required amount of time passed (30-90 days depending on their location) and your spouse failed to respond to the complaint. The divorce has hit a roadblock—what do you do? In this case you can also file for an order of default.
An order of default may also be granted if a spouse fails to show up for hearings without a good reason, assuming they’ve been properly notified.
Under all of these scenarios, the default may not apply if your spouse is on active duty in the military. Military divorce is a separate topic that deserves a separate discussion.
Motion to Vacate
Sometimes your missing spouse may finally reappear after the entry of default, but before the divorce has been finalized. If they have a good reason for being unresponsive, they may be allowed to set aside the order of default. This motion typically has to be filed within 30 days of the date when the order was issued. This simply means that your spouse is asking the court to vacate the judgment of default and allow them to present their arguments and defenses. You have the right to oppose the motion to vacate if you believe that your spouse is not telling the truth about their excuse. When there are child access or custody issues involved, defaults are usually readily vacated.
If you have any other questions about order of default, feel free to contact our Maryland attorneys for a professional consultation.