Legal Question in Family Law in Minnesota

Re: Default Divorce Hearing

The answer depends on the Judge.

Many judges are extremely hesitant to enter a default judgement if the other party appears at the hearing and objects to the default, particularly if they are pro se. The Judge will ask questions and may give the other party time to hire an attorney and answer.

If the court proceeds by default, the Judge wuill ask you questions regarding the circumstances, the jurisdictional issues, the facts of the case, and determine if the relief you are requesting is appropriate. if appropriate, the court may enter an order.

For a consultation call 952.746.2153.

Re: Default Divorce Hearing

Thank you for your question regarding a default hearing.

If your husband did not respond to a motion or summons, some judges will not allow him to make any appearance at the hearing. A few judges will, however, give him an opportunity to appear, and may even grant him a continuance if he claims that he needs additional time to hire a lawyer. In part, it depends on the circumstances of the default.

If the default is a failure to respond to the summons commencing a divorce proceeding, and a reasonable period of time has passed without any response from him, the court will be more inclined to grant a divorce by default -- even though the law generally prefers that cases be resolved on the merits, and not be default.

If the default is a failure to respond to a motion to modify child support, for example, the court will probably allow him to appear at the hearing and will take testimony from him. I presume from your question, however, that the defaul is in response to a summons.

As to child support, it is possible the court will make a decision about child support at the hearing, if it has some evidence of his income. I would hope your divorce petition makes an allegation about the amount of his income, since his failure to answer constitutes an admission that your allegation is true. Then it is a relatively simple matter for the court to calculate child support, based on your allegation regarding his income. But be aware, the court will expect you to come prepared with a proposed order, including a calculation of child support. That is what happens when a case is ordinarily resolved by default -- the moving party must present to the court a proposed order with a proposal for custody, child support, etc.

If, however, you do not have any information about his income, or cannot provide the court with a reliable estimate of his current earnings, it is possible the court will reserve the issue of child support and refer the matter to the "expedited" process. This basically means the court is leaving the calculation of child support to a child support magistrate in a separate proceeding.

I would encourage you to consult with an attorney about this matter and, hopefully, have the matter concluded at the default hearing. My contact information is below if you have further questions or concerns. You can feel free to give me a call.