Fort Lauderdale Divorce Lawyer Blog
Sometimes, you may have some serious items working against you in your family law case. If your case falls into that category, don’t let that intimidate you and lead you into making the mistake of simply giving up. Many times, the law is more complex and nuanced than people realize and there may be opportunities to achieve a successful outcome, even in the face of a difficult situation. In other words, don’t give up – contact an experienced South Florida child custody attorney instead.
L.S. was someone who definitely had some things working against her in her divorce case. Her husband had gone through all of the legal steps required to get what the law calls a “default judgment.” A default judgment is something that a court may award when a plaintiff has done everything the law requires of him to advance his case, but the defendant has not participated in the case in any meaningful way. When that happens, the court may enter that default judgment and, many times, that ends with the court giving the plaintiff everything he asked for in his court filings.
L.S. had not responded to the husband’s court documents that were served on her. She was given notice that the court was holding a hearing on her husband’s request for a default judgment, but she didn’t attend that, either. As a result, the trial judge granted the husband his default judgment, granting him a divorce. The judgment also gave the husband what he wanted with regard to equitable distribution, timesharing and parental responsibility.
At this point, you may think that, assuming that the husband did everything procedurally correctly (which he did), L.S.’s case sounds pretty hopeless, right?
Not necessarily. The law provides various means through which a party who has been on the losing end of a default judgment can ask the court to set aside that prior judgment. If you can show that you had a valid defense, but did not participate because of “excusable neglect” and that you exercised “due diligence,” then you can get your default judgment overturned.
Now you may find yourself saying, “OK, so what happens if I was so traumatized and overwhelmed by the breakdown of my marriage that I simply ignored all those letters from the court clerk and my spouse’s lawyer. Now my case is a lost cause, right?”
Again, not necessarily. Certainly, “I ignored all correspondence about my case because it stressed me out” doesn’t qualify as excusable neglect. Florida, however, carves out a very clear exception regarding default judgments when it comes to divorcing parents. Even if you were on the losing end of a default judgment that was validly obtained by your spouse and is not eligible to be set aside, you can still go to court and argue your case about parental responsibility and timesharing.
Florida law requires that parental responsibility and timesharing decisions be made based upon the best interest of the child. That “best interest of the child” rule is so important that the law says that it trumps a party’s entitlement to obtain relief through a default judgment. Making a decision that truly meets the best interest of the child requires that the trial judge “have the benefit of the testimony of both parents.” So, even if you are not entitled to have your default judgment set aside, you may still be able to get a hearing, argue your case regarding parental responsibility and timesharing, and get the parental responsibility and timesharing part of the default judgment reversed. (That is what happened in L.S.’s situation.)
Ours is not a perfect world. Sometimes, people make mistakes and, sometimes, those mistakes impact their family law cases. Even if you’ve made mistakes that have worked against you in your case, now is not the time simply to walk away and give up. Your family is too important. Instead, reach out to the skilled South Florida child custody attorneys at Sandy T. Fox, P.A. Our attorneys have many years of providing helpful advice and thoughtful strategies in a wide spectrum of family law cases. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.