What is a Default and What Does it Mean in the Family Law Context?
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.
Top 5 Things to Know when Choosing a Mediator
1. Experience Matters
When choosing what mediator may fit best with the issues in your family law case, it is important to find a mediator with a proven record of success in resolving cases. Most mediators are chosen as a result of the relationship they have built with the attorneys in the community. If you have retained an attorney for your family law case, then it is likely your attorney has several mediators they have worked with in the past and would likely recommend a mediator based on their past experiences with that particular mediator. If you do not have an attorney, or your attorney is not familiar with proven mediators, then it becomes even more important to do your homework and research as much as you can about the mediators in your area who may be the right fit for your case.
2. Legal knowledge matters
It is important to know that to be a family law mediator in Florida does not require a law license. In fact, there are qualified professionals, such as psychologists, counselors, and other mental health experts, that have been certified by the Florida Supreme Court in family law mediation, just like attorneys. So depending on the issues in your case it is possible you will want to consider using someone that has a non-legal background. If financial or other legal-intensive issues are not the top priority, but rather if deciding child-related issues are of the utmost importance, then it may make sense to use a mental health professional that is sensitive to the issues involving children and co-parenting. If, however, there are complex financial or legal issues, then having a non-attorney mediator may not be your best option.
3. Demeanor matters
Having a mediator that respects the parties, their positions and the attorneys is very important to having a successful mediation. If one party feels that the mediator is not acting in a neutral way, or has the appearance that they are favoring one side over the other, then it is likely that would have a negative effect on the mediation and it would be unlikely that the case would resolve by way of mediation with that particular mediator. It is of vital importance to have a mediator that you feel comfortable with, is open to hearing both sides and does not choose sides during a mediation.
4. Location matters
Believe it or not, sometimes the location of the mediation itself can determine whether or not a mediation will be successful. Mediations can occur just about anywhere, including an attorney’s office or a more neutral location, such as the mediator’s office. In some cases, parties may not be comfortable going to mediation at the opposing attorney’s office, so it is important to consider these issues when scheduling your mediation.
5. Costs Matter
One of the first questions I usually get from my clients is, “How much is mediation going to cost?” In order to gauge the costs, it is important to understand that there are two types of mediations, a courthouse mediation and a private mediation. Usually, the difference between the two comes down to how much money the parties make. If the parties make less than $100,000 in combined gross income, then they would qualify to have a reduced cost mediation offered through the courthouse and would pay a total of $60 to $120 for a three-hour mediation. If the parties’ combined gross income is greater than $100,00, then they would need to find a private mediator to mediate their case, and those costs will generally run anywhere from $100 to $350 per hour, with usually a two or three-hour minimum. When it comes to mediation and private mediation, in particular, it is important to remember that if you do resolve your case through mediation, then the costs you spend for that mediation would be a drop in the bucket compared to what you might spend for a full-blown trial to litigate all of the issues in your family law case.
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.
