Fort Lauderdale Divorce Lawyer Blog
If a party declines to reply to a complaint in a divorce matter, the court may issue a default judgment against them, just as it might in other lawsuits. While a default decision may be appropriate in a simple divorce case, it is not acceptable in a case involving child custody. In a recent Florida opinion, the appellate court discussed whether a judgment by default in a custody matter was proper, ultimately ruling that it was not. If you or your spouse intends to seek a dissolution of your marriage, it is critical to understand your rights, and you should meet with a capable Florida divorce attorney as soon as possible.
The Facts of the Case
Allegedly, the couple wed in 2015. They had one child together, but shortly thereafter ended their romantic relationship. The wife instituted a divorce action in 2019. The wife noted in her petition that the parties shared a child. The wife was living in Key West, the husband in Illinois, and the child was living with the husband’s relatives in Florida at the time. A Sheriff’s deputy in Illinois personally served the divorce papers to the husband.
The husband allegedly did not appear in court or make any attempt to challenge the divorce. A hearing took place in February 2020, and a special magistrate suggested that the wife’s petition be granted, giving her sole custody of the child. The court subsequently issued a default judgment, terminating the marriage and awarding exclusive custody of the child to the wife. The husband then filed an appeal.
The Consequences of the Failure to Respond to a Divorce Complaint
The husband’s main argument on appeal was that the trial court improperly exercised personal jurisdiction over him because the return of service form did not specify the time of service. This argument failed to persuade the court, which found that he had not met his burden of establishing that the trial court made a reversible error in neglecting to do so.
Despite the fact that the husband made no claim that the order was incorrect in terms of child custody, the court decided to address the issue. The court explained it is clearly established under Florida law that when a divorcing couple has a child, the court handling the divorce matter cannot enter a default judgment on the issue of custody without first giving the defaulting spouse the opportunity to present evidence on questions concerning the child. As a result, the court vacated the ruling that gave the wife sole custody.
Meet with a Seasoned Miami Attorney
People’s rights may be irrevocably harmed if they do not respond to divorce petitions promptly, thus anyone served with a divorce action should contact an attorney as soon as feasible. If you have questions regarding the dissolution process, the seasoned Miami family law attorneys of the Law Offices of Sandy T. Fox, P.A., can advise you of your options and aid you in pursuing the best outcome possible under the circumstances. Our office is located in Aventura, and we regularly represent parties in divorce matters in Miami. You can contact us through our form online or at 800-596-0579 to set up a conference.