Family Law: Motion of Default

When a person is served with a lawsuit, there is generally a Summons that says they must respond within a certain amount of time, typically 20 days if served in the State of Washington and 60 days if served outside of the State of Washington. To protect themselves, they should timely file a Response to Petition, which addresses all of the allegations in the Petition, by either admitting or denying them. By filing a Response, it puts the case at issue and it can proceed to trial. If a person fails to file a Response, the court (and the other party) does not know what issues are being disputed.

If no Response has been filed, the moving party (petitioner) can file a Motion for Default, defaulting the other party (respondent) out of the lawsuit. If that happens, the petitioner can go into court and get everything they have asked for (although they cannot exceed the relief that they asked for in the Petition). In a Dissolution of Marriage, there is still the 90 waiting period that must expire before you can enter a final Decree to dissolve the marriage. To avoid the default from being entered, the respondent must file the Response timely.

If the respondent has not appeared in the action in any fashion (phone call, letter, signature on formal papers), then the petitioner can file the Motion for Default without even giving the respondent any notice. If the respondent has appeared, then the petitioner must give the respondent notice of the Motion for Default, so they have an opportunity to respond.

If you have been served with a Summons and Petition, make sure you put in a timely Response to Petition. If you are the petitioner and the respondent has not filed a Response, you can file a Motion for Default and enter a Decree without having to wait for your trial date.

If an Order of Default has been entered, in some circumstances it can be vacated if the motion is filed timely. If a default Judgment has been entered against you, seek legal counsel immediately. Because a Default Judgment can be vacated, sometimes it is better to wait and proceed to your trial. The trial will be one sided (as the other side will not appear). You will then present evidence on what you want, and without any opposing evidence or argument, the court may very well grant your requests. This order will be much more difficult for the other side to vacate should they later decide to do so.