The Pros and Cons of a Default Divorce

Learn when, why, and how to get a default divorce—and the potential risks.

You might be considering a default divorce if your spouse is missing or refusing to cooperate with your plans to end the marriage, or if you're simply hoping to get divorced without spending a lot of time or money. You'll need to understand the default divorce process and requirements. But first, you should learn about the risks and potential benefits of default divorce before deciding whether it's the right choice for you.

• What Is a Default Divorce?
• What Are the Pros of a Default Divorce?
• What Are the Cons of a Default Divorce?
• Why Choose a Default Divorce?
• How to Get a Default Divorce
• Getting Help With a Default Divorce

What Is a Default Divorce?

A default divorce is basically a divorce that a judge grants to one spouse without the other spouse's involvement. The exact process for getting a default divorce varies by state, and sometimes by county (more on that below).

Usually, people seek a default divorce when they can't find their spouse, or their spouse refuses to sign the divorce papers. This is often called a "true" default divorce.

But some states (like California and New Jersey), and certain counties within other states (like Arizona), also allow couples to get an uncontested divorce using the default divorce process when they've agreed on the terms of their divorce and signed a marital settlement agreement.

What Are the Pros of a Default Divorce?

There are advantages to the default divorce process, including the following:

• Divorce when your spouse is missing or won't cooperate. If your spouse is missing or refuses to respond to your divorce petition, default divorce might be your best—and sometimes only—option for ending your marriage.
• Cost savings. Compared to a traditional contested divorce , d efault divorce can save money on the cost of divorce , because you usually won't need to pay a lawyer to gather evidence and argue your case before a judge. Keep in mind that costs can vary quite a bit, depending on the details of your case and the laws in your state. In some states (like Texas), you may still need to attend a hearing and present evidence to support what you've requested in your divorce petition before a judge will grant your default divorce. In other states, like Pennsylvania, a judge may grant you a default divorce without a hearing, as long as you claim in your divorce petition that you meet the state's requirements for a no-fault divorce, and your spouse doesn't deny it. (Tex. Fam. Code § 6.701; 23 Pa. Cons. Stat. § 3301(d)-(e) (2023).)
• Speed and ease. If you qualify for a default divorce, the process is usually quicker and simpler than a contested divorce. However, you'll still need to meet your state's requirements for serving your spouse with divorce papers and, typically, with at least one more notice that you've requested a default judgment. At each stage of the process, your spouse will have a certain amount of time to respond to those notices, and you'll have to wait for that time period to expire before you can move ahead.
• Confidentiality. In a default divorce, you generally won't need to submit the kind of detailed financial information (like pay stubs, tax returns, and bank statements) that both spouses are usually required to disclose in the divorce process. However, if you have minor children, you might still need to provide estimates of both parents' income (for purposes of child support). Also, you'll need to provide information about any marital property that you're requesting be divided in the divorce.

What Are the Cons of a Default Divorce?

Despite these advantages, you should be aware that there are serious risks involved with default divorce, for both spouses.

Risks for the Spouse Who Files for a Default Divorce

If you follow all the requirements for requesting a default divorce, there's still a risk that your spouse could show up and prevent you from getting a default divorce. If your spouse decides to reply or appear at the default hearing and raise an objection, your default divorce probably won't be allowed to move forward. You might end up needing to file more paperwork, appear in court to argue your case, and pay extra court fees or lawyer's fees, before your divorce can be finalized.

Even after a judge has granted your default divorce, there's still a chance your spouse could ask to have the judgment set aside. If your spouse files a motion (a formal request) within the time allowed in your state, and then convinces the judge that there's a valid reason to set aside the default divorce (more on that below), you'll have to begin the divorce process again from the beginning. Of course, that would require more time and money.

Risks for the Defaulting Spouse

When you don't respond to a divorce petition or participate in a divorce hearing, you're essentially giving up your right to object to anything your spouse has requested in the default divorce. You may not understand the consequences of those requests, and you won't have any input about issues that could have a major impact on your life, including the ownership or sale of your home, division of other property, your duty to pay (or right to receive) spousal support or child support, and child custody arrangements.

Once your divorce is finalized, you'll be legally responsible for following the judge's ruling, with no guarantee that you'll have an opportunity to request changes later on. Even if you request a set-aside within the time period allowed in your state, judges generally will set aside default divorce judgments for only limited reasons. In Florida, for example, a judge may set aside a default judgment if:

• the filing spouse lied or committed fraud
• the defaulting spouse had a valid excuse for not responding to the divorce petition on time, or
• the defaulting spouse has discovered new evidence that couldn't have been found earlier, and that would have changed the judge's previous decision.

(Fla. Rules Civ. Proc., rule1.540(b) (2023).)

Why Choose a Default Divorce?

As we discussed above, default divorce might be the only way to end your marriage when you can't find your spouse, or your spouse is refusing to cooperate with the divorce process.

In other cases, couples might decide together that one spouse will file for a default divorce, and they'll agree on what will be in the divorce petition. Then the other spouse will intentionally not respond, allowing the court to move forward with a default divorce. This approach might seem appealing because of the potential to save time and money. But it may not be worth the risks discussed above.

Unless your state or county specifically allows using the default divorce process when you have a settlement agreement, you'll generally be better off filing for an uncontested divorce. Uncontested divorces typically offer many of the same cost- and time-saving advantages as a default divorce, without the risks.

How to Get a Default Divorce

The exact procedure and forms you'll need to fill out to get a default divorce will depend on the laws and court rules in your state or county. The process typically includes the following steps:

• File and serve the divorce papers. If you're getting divorced without your spouse, you'll still need to follow your state's (or county's) requirements for filing a divorce petition and serving your spouse with the divorce papers. If you can't find your spouse, the court may allow you to use an alternative method of service, like posting a notice in a local newspaper. You'll probably need to provide the court with proof that you made "diligent" efforts to find and serve your spouse using one of the regular service methods approved in your state.
• Wait for your spouse to respond. After you file and serve the divorce papers, there's usually a waiting period of 20 to 30 days (depending on your state or county) before you can request a default divorce. This gives your spouse a chance to sign the paperwork or file an official response to your divorce petition.
• File a request for default. If your spouse doesn't respond to your divorce petition by the end of the waiting period, your next step is generally to file a formal request with the court for a default divorce. Your request will usually need to include a proposed divorce judgment—a document you've prepared that lists the all of the orders you want to be included (such as how you want your marital property to be divided, alimony, child support, and child custody arrangements). After receiving your request, the court will typically schedule a default hearing and try to notify your spouse about the hearing date.
• Go to the default hearing. A few states and counties provide an option for bypassing the default hearing under certain circumstances. For example, in Minnesota, if you don't have minor children and it's more than 20 days past the deadline for your spouse to reply to your divorce petition, you may request that a judge issue your default divorce judgment without a hearing. (Minn. Stat. § 518.13(5) (2023).) Otherwise, you'll usually need to attend a default hearing, where a judge will review your proposed divorce judgment and may ask some questions or request that you submit more information before making an official ruling. In most cases, judges tend to agree to the proposed judgment, as long as it seems fair and reasonable. If you have minor children, the judge will also need to consider whether your proposed custody arrangement is in the best interests of the child and whether the proposed child support provisions meet the state's child support guidelines.
• Finalize your divorce decree. In some states (like Illinois), a judge may issue your official divorce judgment at the end of the default hearing. (750 Comp. Stat. § 5/405 (2023).) In other states, you'll need to file a request after the hearing for the court to order your divorce. Some states also having a waiting period before a judge may issue any divorce judgment. But depending on the length of the waiting period in your state, it usually will have expired by the time you've gone through all the default steps.
• Notify your spouse. Many states require that you try to inform your spouse after the default judgment is entered. You might need to mail a copy of the divorce decree to your spouse's last known address or provide an address to the court for mailing. If you don't have a last known address for your spouse, you might need to use an alternative method, like publishing a notice of the judgment in a newspaper.

Getting Help With a Default Divorce

You may be able to handle the divorce process without hiring a lawyer if you're confident that your spouse won't object to your default request, or if you're cooperating with your spouse to get an uncontested divorce by default, using the standard court-approved process in your state (or county). If you go this route, you can usually find forms and self-help instructions for filing for divorce without a lawyer (often called a "pro se" filing) on the family law section of your state or county court's website. The staff at the courthouse clerk's office or self-help desk can also help you find this information. When your state or county has an approved procedure for default divorce with an agreement, you could also file for divorce online with a low-cost service that will provide you with the completed forms. (Some services will even take care of filing the divorce papers.)

However, if you have complicated finances, or if you think your spouse might contest the divorce, consider speaking with a family lawyer in your state who can advise you about the best options in your circumstances.

If a default judgment for divorce has already been issued against you—and you haven't agreed ahead of time with your spouse on the terms—you should speak with an experienced divorce lawyer as soon as possible. It's important to act quickly, because there's generally only a limited window of time when you'll be allowed to contest the judgment and request that it be set aside.