When a divorce action is commenced in court, a Summons or Summons and Complaint must be personally served upon the Defendant spouse by a third party process server on behalf of the Plaintiff spouse within 120 days from the divorce filing.
The Summons and Complaint will specify the grounds for the divorce, and the relief requested by the Plaintiff spouse, such as child custody, child support, maintenance division of marital property etc.
After service of these documents, the Plaintiff must then file an Affidavit of Service, completed and signed by the server, with the court. This is proof that the Defendant spouse has been served with the documents and has been notified in writing that his or her spouse has filed for divorce.
If the Defendant spouse disagrees with the allegations and reliefs requested, he or she can contest the divorce by filing a Notice of Appearance with the court, and litigate the matter in court over a protracted period at considerable expense.
However, he or she may decide not to respond to the divorce filing, and ignore the deadline for response because they consider this to be the best option in moving forward, especially if there are no minor children or assets in the marriage.
In this event, the Plaintiff spouse can apply to the court for a Default Judgment of Divorce, and all of the stipulations listed in the Summons and Complaint will be granted in the Plaintiff spouse's favor, and the Defendant spouse relinquishes his or her rights. However, a Defendant spouse may ask the court to overturn a default judgment if a good reason can be shown to contest it and have it set aside.
Some couples may agree in advance to a default divorce. They have agreed on all of the pertinent issues, and that the Defendant spouse will not respond in order to allow the court to grant the divorce. By this approach, the couple can resolve all of their divorce issues outside the courtroom, in order that the divorce can proceed quickly and confidentially, without public court appearances, trials and excessive legal fees.