When you are served with “divorce papers” or the Petition for Dissolution of Marriage, it is accompanied by other documents and the most important one is the Summons. The Summons will let the person being served, the Respondent, know that he/she has 20 days to file an Answer to that Petition.
That Petition may be for a divorce or a Paternity Action or a Modification (a Relocation Petition has very different and specific rules to follow).
What is a “Response”
All of the domestic petitions that you may be served with must be responded to within 20 days. A Response can be
an Answer (admitting or denying each allegation) a Motion to Dismiss (that there are no material facts in dispute and the Petition as written should be Dismissed because there is no Cause of Action) a Motion for Summary Judgment (not that simple and has other documents that must be filed with the Motion including but not limited to Affidavits and even sometimes deposition transcripts) or a Motion to Strike, for other discrepancies.
Most common are Answers and the Respondent has the opportunity to file a Counter-Petition with their Answer, which then would have the Petitioner have to file his/her Answer to that Counter-Petition within 20 days.
What happens if nothing at all is filed?
Then the moving party, the Petitioner, may file a Clerks Default. That means, you have proof that the Responded was served and they just ignored the Summons. This means the Clerk will enter a Default (upon Motion, it is not automatically entered). Then the moving party will request a default Final Hearing to obtain a default Final Judgment. This usually means that whatever you request in your Petition the court will grant because there will be no evidence opposing your position.
Even if the non-moving party shows up to court, the default should prevent them from entering evidence, as they did not participate properly with the Answer. IT SHOULD BE NOTED, this goes for non-child related issues. Because the test for how a court rules about child related issues is the best interest of the child, the court must permit evidence, even from a defaulted party, to show evidence of what is best for the child. Remember, the moving party may be the Respondent related to the Counter-Petition that the original Petitioner ignored.
What Happens If You File the Wrong or Incomplete Divorce Response
Now, if there was “something” filed, acknowledgment that the law suit exists the court will accept that as usually an Answer, and that means the moving party cannot obtain a Clerks Default, but the moving party can seek a judicial default, that may require a hearing, where a Clerks Default is transactional, in the Clerks office without any hearing. Some judges will follow the rules of procedure stating that the 20 days has passed, a proper Answer was not filed and the default will stay intact, and others will, upon Motion set it aside.
Most times, the true reason for a Judges Default is to get the case moving. One cannot move their case forward if there is not an Answer or a Default. Filing a Motion for Default, especially after sending notice (a letter) to the non-moving party reminding them with another deadline of a few days (5-10 days is typical) will help move the case along and potentially get the moving party fees, costs and suit money back for their unnecessary work, but the filing of the Default did move the case forward toward resolution.
What Happens If You Try to Avoid a Divorce Petition
You cannot just hide your head in the sand if you are served, you must respond, the case will move forward if you respond or not, so you would rather be a participant in your case versus get a Final Judgment that feels unjust in the distribution of assets and liabilities or even time-sharing with your children. If you try to avoid service at all, if this matter is a dissolution, you can be served via publication. The publication is usually posted in a very rarely read periodical because it is the least expensive, but it does qualify as long as that periodical is published in your county of where the matter is filed.
How to Respond to a Relocation Petition
Petitions for Relocation require very specific objections if you are objecting to the other parent and your child(ren) from relocating. If you do not respond to a Relocation Petition, that is treated as a consent and the Court will enter a Final Judgment granting the request for relocation; therefore, it is extremely important to get an objection timely filed if you want to object to that relocation.
The relocation statute, in FL is VERY specific and must be followed and copied, with exact language in the statute, and if that is not in the Petition, it can be dismissed with ease. If you are filing for a relocation you may request a temporary move and that must be heard within 30 days and the trial is expedited and must be heard in 90 days. Be sure that you give the court notice of the filing, as the Judge may not see what is filed in the Clerks Office timely, so be diligent in sending and Relocation Petitions to the Judicial Assistant (including the other side of course to avoid ex parte communication with the court).
Contact Schwam-Wilcox & Associates for guidance
For assistance with service, Answers or other responses to Petitions or Relocations actions it is best to hire an attorney to assist you with your legal needs. The attorneys at Schwam-Wilcox & Associates would welcome the opportunity to assist you and guide you through the difficult issues surrounding domestic matters.
FAQs
How do I know if I was officially served with a divorce petition in Florida?
If you received paperwork from a process server, you have been served. If there was a publication in a newspaper in your venue, and it ran for 120 consecutive days, you have been legally served. If you have a person over the age of 16 living in your home and they took the paperwork from a process server, you have been served.
Can I request more time to respond to a divorce petition?
Yes, you can ask for an extension by filing a Motion and obtaining a court order, by obtaining an agreement from the Petitioner or the Petitioner’s attorney (if represented).
What if I filed my response but the other party claims I didn’t?
That does not matter, if you file your response (Answer) that will be recorded by the Clerk of Court and accessible to the Court.
Can I change or amend my response after I’ve filed it?
Yes, if it is before there is a responsive pleading (Answer or Motion to Dismiss) you can amended your Petition, if you have an agreement by the Respondent (in writing) or after getting an Order from a Motion for Leave to Amend that is filed with the Court.
What happens if the Petitioner doesn’t respond to my Counter-Petition?
You can move for a default to move the case forward.
