What Is a Default Judgment and How Can I Get It Vacated?
When you fail to timely enter an appearance or respond to a divorce petition filed against you, a default judgment may be entered against you. By entering a default judgment, the court has determined that although you were provided with an opportunity to respond to the divorce petition and participate in the proceedings, you failed to do so. As a result, the court has concluded that it has no choice but to award the petitioner – your spouse who filed the divorce petition – the relief he or she requested in the petition.
If you have a default judgment entered against you in your divorce proceeding, you must take swift action to protect your legal rights and interests. Depending on the facts that led to your failure to appear or respond to the petition, you may be able to have the default judgment vacated.
How Do I Vacate a Default Judgment?
The sooner you move to vacate a default judgment entered against you, the better your chances of success. A court will entertain a motion to vacate a default judgment within 30 days after the default judgment has been entered. It is possible to have a default judgment older than 30 days vacated, but courts tend to do so only when there are extenuating circumstances justifying such an action.
To vacate a default judgment, you or your attorney must file an appropriate motion with the court that entered the default judgment. If possible, you should include your written response to the petition with the motion to vacate the default judgment. In the motion, you should clearly explain the reasons or circumstances that caused you to fail to respond to the petition. Courts will generally look favorably on situations wherein your failure to respond was due to “excusable neglect” such as failing to respond due to a family emergency, misplacing the petition during a stressful time, and similar situations. Courts generally do not look favorably on motions wherein the failure to respond was due to purposefully avoiding service or attempting to delay the divorce proceedings.
What Does It Mean to Have the Default Judgment Vacated?
“Vacating” a default judgment means that the court has set the default judgment aside, allowing the case to proceed as if the default judgment was never entered. This usually means that you will be given a limited opportunity to file your response to the divorce petition (assuming you have not included this with your motion) and the case will proceed from there. Any orders or awards the court had made as part of its default judgment ruling will be set aside.
Do I Need an Attorney to Help Me Vacate a Default Judgment?
A skilled DuPage County divorce attorney can assist you in filing for and obtaining an order vacating a default judgment, especially if it has been more than 30 days since the default judgment was entered. Contact one of our firm’s five offices for assistance with your divorce case today.