Posted by Nydia Streets of Streets Law in Florida Child Custody
When a default is entered against a party in a Florida divorce case, it means the case will proceed without input from the defaulted party. A default is usually entered when a party fails to timely respond to a petition. When the court strikes a party’s pleadings for failure to obey court orders, this can have an effect similar to a default. The consequence of a default is that the defaulting party admits the allegations in the petition by the other party, usually resulting in the other party getting everything they asked for in the divorce because it was unopposed by the defaulting party. There are limits to this default effect, however, as highlighted in the case Shewmaker v. Shewmaker, 2D18-4604 (Fla. 2d DCA November 1, 2019).
In this case, a default was entered against the former wife, resulting in the court awarding the former husband all that he asked for in equitable distribution and with regard to the parenting plan. The former wife filed a motion to set aside the default judgment, making only a conclusory statement that she had meritorious defenses to the equitable distribution and timesharing provisions of the final judgment. The trial court denied the motion because it did not meet the legal standard for setting aside a default.
The former wife appealed, and although the appellate court upheld the trial court’s decision to deny her motion to vacate the final judgment as to equitable distribution, the court felt compelled to reverse as to the issue of the parenting plan. The appellate court held: “[I]t is well-settled in Florida that where, as here, a divorcing couple has a minor child, a court cannot enter a default final judgment without allowing the defaulting parent an opportunity to present evidence on issues related to the child.” The court continued, “Thus, it was error to deny [the former wife’s] motion for relief from the judgment in this regard. Although [the former wife] has not asserted this specific argument on appeal, the importance of courts' responsibilities to safeguard the best interests of children compels us to address it sua sponte. See Rhines v. Rhines, 483 So. 2d 4, 6 (Fla. 2d DCA 1985). Accordingly, we reverse the portion of the final judgment concerning parenting and child support and remand for a new final hearing on those issues. The court also may, in its discretion, revisit any aspect of the dissolution judgment, including the distribution of marital assets, if it determines that the best interests of the child require such action.”
It is important to meet filing deadlines in your Florida divorce case to avoid adverse action against you. Schedule a consultation with a Miami divorce lawyer to go over deadlines in your case and to form a plan that works for the specific issues in your case.