In Florida, as in most states, before a Court can take action on a legal case, the Judge must ensure the other party has, at a minimum, received notice of the lawsuit. Once a lawsuit is filed, the Clerk of Court will issue a summons that directs the party filing the lawsuit to service notice of the lawsuit on the opposing party. That document will specify to the party being sued that they must respond to the lawsuit by filing a written Answer within twenty days of being served. In most cases, the person being sued will respond to the lawsuit by filing a written answer that contests the allegations raised in the lawsuit and the relief being sought. But what happens if the party being sued does nothing and does not file any written answer?
In most cases, if the other party receives notice, and proof of this notice is filed with the Court, usually by way of an affidavit of service provided by a licensed process server, then the Clerk of Court, or the Judge, can enter a Default again that party. Once a default has been entered, all well-plead allegations contained with the petition are deemed true and the Court may proceed to enter a Final Judgment in the case. At that final hearing, the Court can take testimony on the uncontested allegations in the petition and enter a Final Judgment. In family cases specifically, where children are involved, the Court must make factual findings related to the best interests of the children before entering a Final Judgment.
In many cases, after a default, or even a Final Judgment, is entered, the other party may try to enter the case and contest the validity of the Default or Judgment. In that situation, the question becomes, can that party still be heard on the merits of the lawsuit?
In short, the answer, many times, is yes, particularly in family law cases. Upon the filing of a sufficient motion, the Florida Rules of Civil Procedure state that the Court may set aside a default or judgment upon the showing of the one of following: (1) Excusable neglect; (2) Newly discovered evidence; (3) Fraud, misrepresentation, or other misconduct of an adverse party; (4) That the judgment or decree is void; or (5) That the judgment or decree has been satisfied, released, or discharged, or a prior judgment which it is based has been reversed or otherwise vacated, or it is no longer equitable. While the burden to prove these elements is on the party seeking to set aside the default or judgment, the leading case law on these issues say that defaults should be set aside liberally. This follows the general policy that lawsuits should be determined on their merits and not on legal technicalities. If you have any questions about how a default can affect your case, it is important to consult with an experienced attorney right away, as the passage of time can be a factor in the setting aside of a default.
Attorney Russell J. Frank is a partner at CPLS, P.A., and a Florida Supreme Court Certified Family Mediation who focuses his practice areas on family and marital law. Contact Attorney Frank today at rfrank@cplspa.com to discuss any family or marital legal issues you may be experiencing.
