What is a Default Divorce and when can you obtain one?

You may file a motion of default in an Illinois divorce case if your spouse doesn’t respond to your initial petition for dissolution of marriage. If the judge grants your motion, your divorce case moves forward and you’ll get a final divorce judgment without your spouse’s participation or signature.

Service

Before you file a motion for default, you must properly serve your spouse. If you know where your spouse is or can be located, you must have a sheriff or a special process server personally serve your spouse the divorce papers (petition and summons)  The sheriff or special process server will send you an affidavit once your spouse is served that you will then need to file with the Court and show to the Judge when you present your motion for default and upon prove-up.  If your spouse doesn’t respond, by filing an answer to your petition in court within (30) days after receiving your petition and summons, you may file a default motion and request a Court date to present it to the Judge. If the judge approves your request to serve your spouse by publication in a newspaper –usually allowed if you don’t know where your spouse is, for example–you’ll receive a default date from the court. Once that date passes, you’re allowed to file a motion for default if your spouse didn’t answer.

Filing the Motion

You need the certificate of dissolution, motion for default and notice of hearing forms if you’re filing a motion for default. Once you file the forms and pay the fees–fee amounts depend on the Illinois county–you’ll receive a court date for your default motion. You have to mail two sets of completed, court-stamped copies of the forms you filed to your spouse at his/her address. If you served your spouse by publication, you will need to mail the forms to his/her last known address.

Hearing

You must attend the hearing, also known as the prove-up and go over the facts of the case with the judge, such as what date your spouse received the divorce papers or the dates you ran the notice in the newspaper.  You should bring any other forms the court requires you to bring to the hearing for the judge to sign–such as a dissolution of marriage form or a drafted judgment–and copies of all forms filed and paperwork used to prepare them.  If the judge grants your default motion, he/she will sign the divorce judgment and your divorce will be complete. You will then be required to mail the judgment to your spouse and file a certificate of mailing with the court.

Possibility of Judgment being overturned

A judge can overturn your default divorce judgment if your spouse petitions the court within (30) days of its entry and has a reason for not responding that the judge accepts.

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