Note: This guide will explain the divorce process, but the forms referred to here are available only in the print edition. For ordering information, visit the LSNJ.org publications page, e-mail publications@lsnj.org, or contact Legal Services of New Jersey at 732-572-9100.
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Chapter 4:
Getting a Default Judgment
This chapter will provide step-by-step instructions for getting a divorce judgment against a defendant who does not file a written answer to your complaint.
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If you served the defendant properly and the defendant does not file a written response (answer, acknowledgment of service, counterclaim) to the complaint within the time allowed (35 days from the date of service, unless the court has allowed an extension of time or provided a specific time period in an order for alternate service), you may ask the court for a default judgment in your favor. This means that a judge will sign an order deciding the issues in the case without the defendant’s participation.
The default judgment does not happen automatically. The procedure requires several steps. The steps that you must follow to request a default judgment are listed below, along with a brief explanation of the forms that you will have to fill out and file.
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Procedure to Obtain the Entry of a Default Judgment and a Default Divorce Hearing
File a Request for a Default
When the defendant’s time to answer the complaint has expired (that is, more than 35 days have passed since the date the defendant was served, or the period of time provided in the order for alternative service has expired), call the court clerk to make sure that no answer has been filed in your divorce action. Once that is confirmed, you must prepare the following documents and file them with the court:
- Request to Enter Default Judgment and Supporting Certification (Form 17).
- Certification of Non-Military Service (Form 18).
Note: If you do not request a default within six months of the date that the defendant failed to respond to your complaint, you will have to file a motion with the court seeking permission to obtain a default judgment, costing you additional time and money. This manual does not explain that procedure.
Mail an original and one copy of the following to the court:
- Filing Letter to Court—Request to Enter Default Judgment (Form 17A).
- Request to Enter Default Judgment and Supporting Certification (Form 17). In response to this request, you should get a date for your hearing from the court.
- Certification of Non-Military Service (Form 18). You cannot get a default judgment against your spouse if he or she is in the military. In applying for the entry of a default judgment, the court requires the plaintiff to submit a sworn statement that the defendant is not in military service. If you have personal knowledge that the defendant is not in the military, you may fill out and sign a Certification of Non-Military Service (Form 18). Personal knowledge means that you are relying on your own firsthand knowledge, not something that your spouse or someone else has told you. If you do not have personal knowledge, you must base your statement on the written responses from the branches of the military that you receive in response to your inquiries.
To obtain a statement from the Department of Defense (DOD), you must know the defendant’s Social Security number. If you do not have this information, you may not be able to get the statement that you need from the DOD. Instead, you should contact the specific branch of the military. However, if you do not know what branch of the military to contact, a statement from the Department of Defense (DOD) that the defendant is not in the military may substitute for a statement or certificate from a specific branch of the military government. You can visit the DOD Web site, or you can mail a letter to the Defense Manpower Data Center of the DOD. (See Letter of Inquiry to the Military (DOD) (Form 9C)). There is no charge for this statement.
When you do know which branch of the military to contact, you may contact the specific branch of the military (Army, Air Force, Navy, Marine Corps, Coast Guard) by visiting the Servicemembers Civil Relief Act (SCRA) Web site. The Web site contains additional information. You must then mail a letter to the appropriate branch of the military. (See Letters of Inquiry to the Military [Army, Air Force, Navy, Marine Corps, Coast Guard] (Forms 9D through 9H)). For the Marine Corps only, mark the bottom of the envelope Official Business. The locator service is free to immediate family members and government officials. All others must pay $5.20. Checks or money orders should be made payable to the agency listed in the letter of inquiry.
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If You Are Unable to Get a Statement About the Defendant’s Military Status. If you do not have firsthand knowledge about whether or not the defendant is in military service and you are unable to get an official statement from the DOD or another branch of the military about whether or not the defendant is serving in the military, you must report this to the court. Without this information, you cannot file the required Certification of Non-Military Service (Form 18) with the court at the time that you request the entry of default judgment.
In situations where you are unable to get any definite information or official statement about the defendant’s military status, the court may feel that it is necessary to require that you post a bond (pay a certain sum of money into the court) to protect the defendant’s rights. The reason for requiring you to set aside money is to pay the defendant for any loss or damage that he or she might suffer as a result of not participating in the divorce through no fault of his own because of active duty in the military.
The bond money must be available until the time for the defendant to appeal from the judgment of divorce has ended. When a party appeals from a judgment, he or she files a notice of appeal to the Superior Court, Appellate Division, for a review of the trial court’s decision. (You have 45 days from the date that the judgment is entered by the trial court to file an appeal.) The court may also require that the bond money be available until the time for setting aside the judgment of divorce has ended. (The time for setting aside a judgment can be a year or longer.)
This means that, in certain situations where the defendant stands to lose significant property through a divorce, the court may require you to post a bond. In those situations, if you cannot afford to post a bond, you may not be able to get your divorce. However, in a situation where there is no significant marital property that needs to be divided, the court may waive the requirement that you post a bond and allow the divorce action to go forward.
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If You Are Able to Get a Statement About the Defendant’s Military Status. Attach the responses that you get to the Certification of Non-Military Service (Form 18).
File Form 18 with the Certification of Service (Form 16) and a self-addressed, stamped envelope so that a filed copy of your papers can be returned to you.
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Send the Defendant a Copy of the Request to Enter Default
Send this by both regular and certified mail, return receipt requested, at the same time that you file it with the court. Save the return receipt, because you will need it later when you go to court for your default hearing.
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Get a Date for Your Default Divorce Hearing
Mark your calendar to call the clerk two weeks after you send the request to enter default to get a date for your hearing. If you do not hear from the court within two weeks, call the clerk of the matrimonial department and inquire about the hearing date. (See Where to File Your Divorce for telephone numbers and addresses.)
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Send the Defendant a Notice of Default Divorce Hearing
When you receive the date for your hearing from the court, fill out the Notice of Default Divorce Hearing (Form 19) and mail it to the defendant by both regular and certified mail, return receipt requested. If you are not seeking custody, child support, or equitable distribution, you will send a copy of Form 19 to the defendant with a Cover Letter to Defendant—Notice of Default Divorce Hearing (Form 19A). You also should send a copy of the Notice of Default Divorce Hearing (Form 19) with a Certification of Service (Form 16) to the court. If you are seeking custody, support, or equitable distribution, you must take the additional steps below.
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Additional Steps if You Are Seeking Custody, Child Support, Equitable Distribution, or Other Relief
If the defendant has not answered the complaint and you are asking for more than just a divorce and a name change—for example, you are asking for property or a division of debts, child support, or alimony—you will need to take some additional steps. You must:
- Prepare a Notice of Application for Equitable Distribution (Form 20) and a Certification of Service (Form 16).
- Prepare the Filing Letter to Court—Notice of Application for Equitable Distribution (Form 20A).
- File an original and one copy of the Notice of Application for Equitable Distribution (Form 20) and Certification of Service (Form 16) with the court.
- At the same time that you file the Notice of Application for Equitable Distribution (Form 20) with the court, mail it to the defendant by both regular and certified mail, return receipt requested.
Note that it is very important that the defendant be served with the notice no later than 20 days before your hearing and that you have the return receipts and certification of service when you go to court. If you do not serve the defendant with this notice 20 days or more before your hearing, the court will not consider your request for equitable distribution. You may get a divorce, but you may not get any money or property awarded to you and the judge may not order the defendant to pay alimony, child support, back debts, or any of the other things for which you are asking.
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How to Prove to the Court that the Defendant Received the Notice of Application for Equitable Distribution Within 20 Days of the Date of the Default Hearing
At the default hearing, you will be required to show proof that the defendant either received or refused the notice of application for equitable distribution at least 20 days prior to the scheduled default hearing date. Proof that the defendant received the notice can include either the green return receipt card with a signature, or the envelope stamped by the post office “unclaimed” or “refused.”
Note: An envelope returned and marked “incorrect address” or otherwise indicating that the correspondence is undeliverable is not valid proof that the defendant received or refused the notice of application for equitable distribution.
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What to Do if the Defendant Does Not Receive the Notice of Application for Equitable Distribution Within 20 Days of the Date of the Default Hearing
If the date on the green return receipt card indicates that the notice of application for equitable distribution was delivered to the defendant less than 20 days before the default hearing, or if you do not know when the defendant received the notice of application for equitable distribution because you have not yet received proof of delivery or refusal from the post office and the default hearing is scheduled in two or three days, you will have to ask for a new date for the default hearing. To do this, you must contact the clerk of the matrimonial department or the judge’s chambers. (See Where to File Your Divorce for telephone numbers and addresses.)
Tell the clerk that you attempted to serve the defendant with the notice of application for equitable distribution, but it was delivered too late; or that you do not know when the defendant received the notice of application for equitable distribution, because you have not yet received the proof of delivery from the post office. In either situation, ask the clerk for a new default hearing date, with at least 40 days advance notice (or as much time as you think that you will need to serve the defendant with a new notice of application for equitable distribution). See Filing Letter to Court—Request to Enter Default Judgment (Form 17A).
Once you have the new court date for the default hearing, you must send the defendant a new notice of application for equitable distribution with the new default hearing date. You can use the Notice of Application for Equitable Distribution (Form 20) and the Notice of Default Divorce Hearing (Form 19) for this purpose.
If there have been any changes in your financial circumstances, you are required to send in an updated Family Part Case Information Statement (CIS) (Form 3A). Also use the Filing Letter to Court—Complaint (Form 6), which is the cover letter you used when you filed your complaint.
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Getting Ready for Your Default Divorce Hearing
Once you send out your request for default, it is a good time to review your file and put all of your divorce papers in order. This will help you to prepare for your hearing, and you may need some of these papers when you go to court. You should also prepare your proposed Final Default Judgment of Divorce (Form 21) to take with you to court on the day of your default hearing.
Here is a list of the divorce papers you should have with you in your file, just in case you need them or need to refer to them for some reason. We suggest that you put them in chronological order, so that the most recent document that you prepared—your proposed Final Default Judgment of Divorce (Form 21), which you will be bringing to court—is on top.
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Papers Needed for Court—Your Case File
- The filed copy of your Complaint for Divorce and Attached Certification (Form 1A, 1B, 1C, or 1D).
- Certification of Insurance (Form 2).
- Certification of Notification of Complementary Dispute Resolution (Form 2B).
- Family Part Case Information Statement (CIS) (Form 3A).
- Summons and Attached Proof of Service (Form 7) and one or more of the following documents, depending on how the defendant was served:
- If service was done through a sheriff, the sheriff’s proof of service or, if the complaint was served on the defendant in another state, proof of service from an appropriate state official.
- If service was done by mail, the signed and notarized Acknowledgment of Service (Form 8).
- If service was done by substituted service or publication:
- Either Order Permitting Substituted Service on a Special Agent (Form 10B) or Order Permitting Service by Publication (Form 11B).
- Either return receipt from mailing to a special agent or proof of publication from the newspaper.
- Certification of Non-Military Service (Form 18) and, if applicable, attached certificates of non-military service from each branch of the service that you wrote to in your diligent inquiries.
- Notice of Application for Equitable Distribution (Form 20) and Certification of Service (Form 16) with return receipt attached.
- Notice of Default Hearing (Form 19) and Certification of Service (Form 16).
- Proposed Final Default Judgment of Divorce (Form 21).
You should also have the following personal documents with you:
- Marriage certificate.
- Birth certificates for the children.
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The Default Divorce Hearing
At the default divorce hearing, the court must address the requests for relief in your complaint. Often there are issues, such as the division of property or the calculation of alimony, that cannot be decided without some type of proof. In that situation, the judge will hold a hearing to decide what relief to grant. You may present evidence at the hearing supporting your requests for this relief.
The defendant can come to this hearing if he or she chooses, even if he or she did not answer the complaint. The defendant can ask for an adjournment (postponement) to give him or her time to answer the complaint. The court will most probably grant this request if the defendant gives a good explanation of why he or she failed to answer earlier in the process. In that case, the court will decide at that time when the defendant’s answer is due. The court will either inform the plaintiff and defendant of the new hearing or trial date while both parties are in court on the day of the default hearing, or the court will send a notice to both parties with a new date for the hearing or trial. If the court decides to give the defendant an opportunity to file an answer, the court will also inform both parties of the date on which that answer is due to be filed.
Note: If the defendant files a counterclaim with his or her answer, see How to Answer the Defendant's Counterclaim for an explanation of how to properly prepare and file an Answer to Counterclaim for Divorce (Form 15A).
If the defendant appears but does not ask for an adjournment and the default hearing goes on as scheduled, the court may limit the defendant’s participation to asking you questions about the evidence you present. Technically, the defendant should not be given an opportunity to present evidence to support his or her position or to make requests for relief. However, some judges will let the defendant participate fully in the hearing and present his or her own evidence. You can object to this participation, remind the judge that the defendant failed to file an answer or enter an appearance in the case, and ask that the divorce be treated as uncontested.
At the hearing, you will be able to show evidence related to your claims about property value, child custody, child support, alimony, and other issues. The documents in your file should have everything you need for the hearing, including the return receipts for all of the documents you had to mail to the defendant and the responses you received to your letters of diligent inquiry, including the certificates of non-military service. You should also have copies of tax returns, pay stubs, bills, bank statements, real estate appraisals, etc.
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Final Judgment of Divorce Where Defendant Is in Default
The court order that officially ends your marriage is called a final judgment of divorce. You should prepare that order and take it to your hearing. That court order decides all of the issues that you have raised in your divorce complaint, such as custody, child support, alimony, equitable distribution of property and debt, and name change. Even if there are issues in dispute, it is a good idea to prepare a proposed final judgment of divorce to take to court. Prepare the judgment as if you have won the case and received all of the relief that you requested in your complaint. For instance, if you are asking for custody of minor children, you would prepare the judgment as if the court had decided to give physical custody of the children to you. If you are asking for a specific amount of child support or alimony, you can put this specific amount in the proposed final judgment of divorce. However, if you have made a general request for those types of relief and are waiting for the judge to decide on the specific amount, you will leave it blank. See Final Default Judgment of Divorce (Form 21).
At the end of the hearing, the judge probably will issue his or her opinion orally. The judge will decide what relief to order and will sign the proposed judgment you brought to the hearing or change it, if that is necessary.
Note: If the defendant does not attend the hearing, you must send the defendant a copy of the final default judgment of divorce. Send the judgment by both regular and certified mail, return receipt requested, within seven days of the date that it is signed by the judge. Use the Cover Letter to Defendant—Final Default Judgment of Divorce (Form 21A). Always keep the copy received from the court for yourself. You must also file with the court a Certification of Service (Form 16), which proves that you have served a copy of the Final Default Judgment of Divorce (Form 21), signed by the judge, on the defendant.
In Chapter 6: Issues after Final Judgment, we explain some steps that you may need to take to enforce your order. Please read that chapter now to see if any of the suggestions apply to you.
If the defendant seeks to vacate the default after a judgment is signed, the defendant can apply to the court to set aside the default judgment and allow him or her to participate in the case. If the defendant gives a good explanation of why he or she failed to participate in the case, the court may vacate the default judgment of divorce and give the defendant an opportunity to file an Answer and Counterclaim for Divorce (Form 14A, 14B, 14C, or 14D). If the defendant files a counterclaim with his or her answer, refer to How to Answer the Defendant's Counterclaim—Forms for Plaintiffs for an explanation of how to properly prepare and file an Answer to Counterclaim for Divorce (Form 15A).
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Checklist for Filing Documents and Table of Documents—Forms 17 through 21A
Review your documents and package for the court to make sure that:
- You have filled in the appropriate blanks on the documents that you are sending or hand delivering to the court.
- You have left blank the sections of the judgment of divorce that must be filled out by the judge.
- Every document is signed and dated, except for those left blank for the judge’s signature.
- You are sending an original and two copies of all documents to the court.
- You have prepared and enclosed a self-addressed, stamped envelope (an envelope with your name, address, and postage on it) for the court to use to return filed copies to you.
- You have the right amount of postage on your package. We suggest that you have your package weighed and stamped at the post office. The court will not deliver mail with inadequate postage.
- You have kept at least one extra copy of all documents for your records.
- After mailing documents to the defendant, you have saved any green return receipt cards with signature or any envelopes stamped by the post office as “unclaimed” or “refused.”
- You have marked on your calendar:
- The date two weeks from the date you sent your documents to the court with a note to call the court clerk if you have not received a date for your default hearing.
- The date from the court for your hearing.
- The date 20 days before the date of your hearing so that you are reminded to file your notice of application for equitable distribution before that date.
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