What is a divorce by default?
A Default Divorce is when the Defendant does not respond to the Plaintiff’s Complaint for Divorce. Typically, after one responds to a Complaint for Divorce with an Answer and Counterclaim. In the case of a Default Divorce, the Plaintiff is usually awarded whatever he or she has asked for in the Complaint. Even if a person does not want a divorce, it is important to contact an attorney very soon after receiving a Complaint for Divorce from his or her spouse to avoid a Default Divorce and protect any assets or custody rights to which he or she may be entitled.
Can default divorce be prevented?
Divorce by default can be prevented by filing the appropriate responses accurately and on time. Nevada Litigation Group can help you be sure that you have responded to all filings and paperwork that your spouse has filed. Even if filed late, we can often avoid a default.
In Cipolla v. Cipolla* a woman filed a Complaint for Divorce against her husband in 1966. She then asked her husband to move back in and he assumed that she did not intend to continue with the divorce. They lived together for two years before the wife went to the courthouse with her attorney and entered a Default against her husband. The Court said that, even though the motion for Default was filed properly, “To condone the [way] in which [the wife] obtained her default judgment against [her husband] would reduce the judicial process to a mockery.” The court approved the husband’s motion to set aside the Default.
In Fagin v. Fagin**, a man moved from New York to Las Vegas and started divorce proceedings six weeks later against his wife of 36 years. His wife obtained an attorney, who told her that if she avoided service, Nevada would not have jurisdiction to hear the case (which is untrue). She avoided service several times, so the husband commenced service by publication. The wife refused to be served, so a Default Divorce was entered, but it was entered one day before the 20-day period in which the defendant can respond. The Court overturned the Default Divorce because the wife was misled by her attorney.
What does Nevada law say about divorce by default?
The Nevada Revised Statutes 125.123 covers Default Divorce. It states that a person can apply for a Default Divorce by affidavit unless the Court wants oral testimony from the witnesses. If the couple had a settlement agreement, the statute says that it must be identified in and attached to the affidavit. The affidavit must not contain anything that is not of the person filing the affidavit’s personal knowledge. The affidavit must “contain only facts which would be admissible in evidence,” give facts to support each allegation, and assure that the person filing can testify to the contents.
The Nevada Rules of Civil Procedure, Rule 55 says that a Default judgment can be entered when the defendant does not plead or defend him or her self. It states that the defendant has to be served at least 3 days prior to the hearing with notice of the affidavit. It also says that if the Court needs additional information, it can conduct hearings, order information be provided, and allow a jury trial in some cases.
NRCP Rule 60 discusses when a Default Judgment can be challenged. The first way this can occur is if the Defendant is not served properly. The second is called a Modification Nunc Pro Tunc. This is a document that can be filed if there was some kind of clerical error by the Court.
What if I have been served divorce papers?
If you have been served divorce papers, don’t just ignore them and hope the situation will fix itself. Doing this can result in losing custody rights, property, and assets. If you are troubled by the divorce and do not want to deal with it, the best option is to contact an experienced Family Law attorney. A good attorney will handle your case with as little stress to you as possible.
Default divorce with Nevada Litigation Group
Nevada Litigation Group will work with you, regardless of income, to ensure that you receive a fair divorce settlement. We offer free initial consultations, low down payments, and convenient payment plans. our attorney is experienced and aggressive and has handled hundreds of divorce cases.
How do I schedule a free consultation?
For a FREE consultation call our office at (702) 476-9629.
*Cipolla v. Cipolla 85Nev. 43 (1969)
**Fagin v. Fagin 91Nev. 794 (1975)