Default in Illinois Divorce and Parentage Proceedings
When one party files a pleading to commence a court case, a common question is “what happens if the opposing party does not engage?” There is recourse if one party does not participate in a court proceeding in the form of a “default judgment” being entered by the judge.
Default judgments in Illinois divorce and parentage cases are crucial elements that significantly impact case outcomes when one party fails to participate in the proceedings. These judgments enable the court to proceed in the absence of one of the parties if it is determined they failed to actively participate in their court case. Default judgments can lead to outcomes favoring the party seeking the default judgment, which is why there is a clear procedure to follow when seeking a default judgment . Knowing how default judgments work, and the consequences, is essential for anyone involved in a divorce or parentage matter.
What is default judgement?
A default judgment occurs when one party involved in a parentage or divorce case does not participate in the court proceedings. In these instances, the court may decide the case without the party’s input.). Default judgments expedite the legal process, allowing the court to finalize matters like allocation of parenting time and decision making, support, and property division without waiting indefinitely for the other party to appear or engage.
Default in Illinois divorce and parentage proceedings usually arises when one party does not comply with certain procedural requirements. The primary ways in which default can occur include:
Failure to Respond to the Petition Within 30 Days: Once formally served, the respondent has 30 days to file an official response. If they do not do so, they risk the other party filing for default.
Failure to File an Appearance in Court: A respondent must file an appearance with the court, either to represent themselves or an appearance on their behalf filed by an attorney, confirming their intent to participate. Skipping this step can lead to default. This arises most frequently when a party has their attorney withdrawal from representation, and the party is granted twenty-one days to file an appearance. If the party fails to file an appearance to represent themselves, or fails to retain another attorney, the other party may move for default.
Absence at Scheduled Hearings: Even if the respondent initially responds, failing to attend court hearings can also trigger a default. One failure to appear is not likely to result in a default finding but rather a continuous pattern of not appearing for court, even with an appearance on file, may result in a default finding.
Default Proceedings
While Section 750 ILCS 5/401(b) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) establishes the legal framework for divorce and parentage proceedings in Illinois, the procedures for default judgments in family law cases are governed more broadly by Section 735 ILCS 5/2-1301 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-1301 specifically addresses the conditions under which a court may proceed by default if the respondent, or counter-respondent, fails to participate after proper notice. This statute grants courts the authority to move forward in the absence of the respondent, allowing the petitioner to present evidence and obtain a judgment to finalize their case.
The process leading up to a default judgment in Illinois divorce cases involves several key steps:
Petitioner Files a Pleading: The petitioner initiates the divorce or parentage proceeding by filing a petition with the court, outlining the terms they seek for parenting time, decision making, support, or asset division.
Respondent is Properly Served Divorce Papers: In the case of a divorce proceeding, the respondent must be personally served with the petition and other relevant documents to notify them of the proceedings and their right to respond. They may also waive service and file an appearance without being formally served.
30-Day Response Period Begins: From the date of service, the respondent has 30 days to respond by filing an answer or appearing in court. This period is crucial, as it allows the respondent to prepare a defense, negotiate terms, or find an attorney to represent them.
Respondent Fails to Respond or Appear in Court: If the respondent does not file a response, appearance, or attend any scheduled hearings within the 30-day period, they risk default.
Petitioner Files a Motion for Default: If the respondent fails to respond, the petitioner may file a motion requesting that the court proceed with a default judgment.
Court Schedules a Hearing on the Motion for Default: The court will hold a hearing to consider the petitioner’s request for default, often as a final opportunity for the respondent to participate. At this time, the party may be found to be in default.
Default Judgment May Be Entered: If the respondent still fails to appear or respond, and once there is a finding that they are in default, the court may grant the petitioner’s requests in full, issuing a default judgment that finalizes the divorce or other final order based on the proposed terms.
Even if a party previously engages and hires an attorney, if their attorney withdraws and they fail to file an appearance to represent themselves or hire another attorney, the default process delineated above may begin at step 4 following the lapse in time for the party to file an appearance.
Although Section 750 ILCS 5/401(b) allows default judgments, Illinois courts require parties to demonstrate proper service of the pleadings filed and a failure on the other party’s part to act within the given timeframe. This procedural requirement protects individuals by ensuring they had an opportunity to participate. Additionally, individuals retain a limited right to contest a default judgment if they can show good cause, such as improper service or unavoidable absence.
Outcomes of a Default Judgement
A default judgment can have far-reaching consequences for the party in default that are difficult to alter, making it critical for parties to engage actively throughout the proceedings. Common outcomes include:
Parenting Time and Decision-Making Determinations: The court may grant parenting time arrangements or allocate decision making responsibilities proposed by the party not in default, which could limit the other parent’s involvement or include terms the default party does not approve of. The judge will review the terms proposed to ensure that they are believed to be in the minor child(ren)’s best interests.
Child and Spousal Support Obligations: Default judgments can impose child support, contribution to the child(ren)’s expenses, and spousal maintenance (in divorce proceedings) requirements based on the non-default party’s terms based on evidence provided. This can be detrimental if the other party has documentation or evidence of their own that supports a different financial outcome that they fail to present to the judge.
Division of Assets and Debts: The court may divide marital property, assets, and debts according to the non-default party’s requests, which may be less favorable to the non-participating party.
Options After a Default Judgement
After a default judgment is entered, the party in default has limited options. Section 735 ILCS 5/2-1301(e) primarily governs the options for a party seeking relief from a default judgment in family law and other civil cases. This statute provides mechanisms for the party in default to contest or vacate a default judgment under certain conditions. In Illinois, they may file a motion to vacate the default judgment within 30 days if they can show a reasonable excuse. After 30 days, the standard becomes much more difficult to meet, and at this time the request is often an uphill battle, as the court will need compelling evidence to reopen the case and reverse its earlier rulings.
Active participation in divorce and parentage cases is crucial. Individuals who engage in the legal process retain a voice in decisions affecting their parental rights, financial responsibilities, and personal assets. By filing timely responses, attending court hearings, and participating in negotiations, individuals help protect their interests and ensure fair proceedings.
Failing to respond or appear can result in one-sided decisions on critical issues like parenting time, decision making responsibilities, support, and property division, without the other party’s input. By understanding the default process and what’s at stake, you can take steps to protect your rights and work toward a fair resolution for everyone involved.
The Law Office of Erin M. Wilson LLC can help you navigate your unique circumstances, offering guidance on how to protect your rights and achieve a fair outcome. Contact The Law Office of Erin M. Wilson LLC today to schedule a consultation at 312-767-4220.
NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.