What is a Motion for “Default”?

http://www.dreamstime.com/-image1800599In Illinois, a party must be served a Summons and a copy of the Petition that was filed against them, unless they waive their right to service.  Parties can waive their right to service by voluntarily filing an Appearance or hiring an attorney to do it for them.  When parties are served, that sets time restrictions for getting the case resolved.  The moment the Respondent is served documents in a case, they have thirty days, not including the date of service, to either file an appearance pro se, indicating he or she will be representing themselves, or, to hire an attorney to file an appearance on their behalf.  Depending upon the case, sometimes the Respondent will have less than 30 days to file their appearance.  The summons will tell the party being served how long they have.

In the event that the party is served and they do not file an appearance, then the Petitioning party may proceed without them.  The petitioner needs to obtain an order holding the respondent in default;  holding the respondent in default means that the respondent was properly served, that there is proof of service in the case file, and that the respondent did not file an appearance or cause an appearance to be filed on their behalf within the specified time in the summons. If the Court holds the respondent in default, then the petitioner has the opportunity to finalize the case based upon the terms they are requesting, without the respondent participating.

All cases are different.  This blog is written in generalities.  Every summons can be a little bit different and it is important that a party that is served find out what they need to do based upon the summons that they were served.  If they don’t understand it, they need to reach out to a lawyer to find out what their obligations are.  These are time sensitive issues, and not responding in a timely manner can have long term consequences, such as substantially increased litigation, attorney’s fees and orders of default awarding the petitioner everything they are asking for.  If you have been served a summons in a domestic relations matter and do not know your next step, feel free to call one of our attorney’s for a consultation.

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