Default | Divorce & Family Law, WA

by Samuel K. Darling, Bellevue Divorce Lawyer

This article explains “default” as it relates to divorce and family law cases in Washington State. It also explains how to default someone, step by step.

Default means a party didn’t timely respond to the petition – the document that started the case ? and the court subsequently banned that party from participating in the case any further. This results in an easy court victory for whoever filed the petition.

For example, the respondent in a divorce typically has 20 days to respond to the divorce petition by submitting a document called a Response to Petition for Divorce (“Response”). The Response is a simple check-the-box form outlining relief the respondent would like in the case. If the respondent doesn’t submit the document by the deadline, the petitioner can file a motion for default. At the hearing on the motion, the court will enter a default order prohibiting the respondent from doing anything else in the divorce case – no presenting evidence, witnesses, or arguments. Once the 90-day divorce cooling off period passes, the petitioner can then request that the court enter final orders, such as divorce decree, parenting plan, and child support order. The court usually grants the petitioner whatever he or she requests, within certain bounds.

This same concept applies in all other family law proceedings started by petition (sometimes called a “complaint”), such as legal separation, dissolution of committed intimate relationships, parenting plan modification, and more. The only difference is the 90-day cooling off period. The cooling off period only applies in divorces. Family law cases other than divorce can proceed immediately from default to final orders.

In all family law cases, the general deadline for responding to the petition is 20 days from service. The exact deadline depends on the means of service. Click here for all possible deadlines for responding to divorce petitions. The same deadlines apply in all family law cases with one small twist. A party petitioning for child support modification can arrange for service by certified mail without obtaining a court order, and it appears the response deadline is 20 days if mailed to someone in-state and 60-days if mailed to someone out-of-state. The law regarding service of child support modifications by mail is somewhat unclear right now.

Also of note, obtaining a default order can be much harder if the responding party is in the US military. The Service Members’ Civil Relief Act requires special proceedings beyond the scope of this article.

I. Simplest Form of Default: Detailed Petition & No Appearance.

The party who filed the petition can quickly and easily obtain a default order and final orders if 1) all the requests for relief in the petition were detailed and 2) the responding party made no appearance in the case. First let’s look at what “detailed” and “appearance” mean in this context.

1. What “Detailed” Means & Why It Matters. In this context, a petition is detailed if it states what the petitioning party wants with specificity. For example, requesting “a fair parenting plan” would not be detailed enough. Further proceedings would be necessary to determine what a fair parenting plan might be. But the request would be sufficiently detailed if it said “adopt my proposed parenting plan” and the petitioning party had served a proposed parenting plan along with the petition.

Most divorce petitions don’t contain sufficient detail for simple default proceedings. Generally these petitions ask to “divide the parties’ property and debts as the court believes fair” or “order an amount of maintenance the court believes appropriate”. Nebulous requests like this require further proceedings. That doesn’t mean divorce petitions of this type are “bad” or that they make default impossible. It just means obtaining final orders after default will take more time and effort.

2. What “Appearance” Means & Why It Matters. An appearance occurs when a party “shows up” for the case, demonstrating he or she wants to participate. This can happen many ways. Typically a responding party or his or her attorney officially appears by filing a response to the petition or submitting a document called a Notice of Appearance. A responding party or his attorney can also informally appear by showing up for a hearing or somehow communicating a desire to fight against the requests in the petition.

Sometimes the responding party fails to appear in any fashion prior to the deadline for a response to the petition. That puts him or her in an especially dangerous position with respect to default. If the responding party has not appeared, the petitioning party can move for an immediate order of default without any notice of the motion to the responding party. This often allows the petitioning party to obtain an order of default the day after the response deadline.

On the other hand, if the responding party appears by the response deadline, the petitioning party cannot file a motion for a default order without providing a copy of the motion to the responding party with advance notice – usually at least a week before the hearing on the motion.

If the responding party appeared in your case, skip to section II, below.

3. Step-By-Step Guide to the Simple Process: How to Default Someone When the Petition Is Detailed and the Responding Party Didn’t Appear. You can obtain a default and final orders in one step and without any notice to the other side. This’s called obtaining an ex parte default and default judgment. Ex parte means “without notice”, default means “default order”, and default judgment means “final orders by default”. Here’s how it’s done:

A. Get Your Documents Ready. Prepare a i) Motion for Default and ii) Order on Motion for Default (default order). These are fairly self-explanatory fill-in-the-blank forms you can download from the Washington Court Forms website under Family Law > Divorce > Default. Use the same forms in all family law cases, not just divorces.

After the last page of the motion insert a certificate from the Defense Manpower Data Center (DMDC) showing the opposing party isn’t in the military. Download the certificate from the DMDC website. You’ll need to create an account to access the certificate. You’ll also need the other party’s social security number or birthdate.

Get copies of your petition (and proposed parenting plan and proposed child support worksheets, if any). You’ll also need proof of service of the petition, sometimes called a Return of Service, Affidavit of Service, or Declaration of Service. Your process server should’ve completed this document at the time of service, though he or she can complete it later if necessary. You can download it from the Washington Court Forms website under Family Law > Divorce > Divorce.

You’ll also need to prepare final orders in your case. Again, you can find templates on the Washington Court Forms website. The contents of your final orders should mirror whatever you requested in the petition (and proposed parenting plan and child support worksheets, if any). The rule pertaining to defaults – Court Rule 55 – says you cannot request anything more than the petition stated.

B. Ex Parte Hearing. The method of setting up an ex parte hearing varies from county to county. Sometimes you can learn how by reading the local county rules. More often you’ll need to speak briefly with someone familiar with the county’s norms, such as a local attorney, LLLT, or family law facilitator. Facilitators are the least expensive option at $10 per session but can only answer basic questions.

At the hearing present your documents to the judge or commissioner. He or she should then sign your default order and final orders. Sometimes the jurist will only sign the default order and ask you to take additional steps before entering the final orders. Additional steps might include taking a parenting class or submitting to a background check prior to entering your proposed parenting plan. No need to worry. Just complete those steps and come back with the all the same documents, including a copy of the signed default order.

Then file and serve your motion and any documents the judge or commissioner signs. You file the documents with the county court clerk’s office and serve the documents upon the opposing party. Emailing the documents to the other side is probably good enough unless your final orders include a restraining order. To be on the safe side, follow the service rules in our firm’s article on How to Serve and Send Papers.

C. Divorce Exceptions. Divorces are a bit more complex for two reasons. First, you can’t present final orders until at least 91 days after service of the petition. That means you’ll usually elect to get your default order on the first possible day (e.g., the 21st day), then come back to the judge or commissioner for entry of final orders (default judgment) on the 91^st day or sometime thereafter.

The second reason divorces are complex: many counties require you to enter “final proof” before the judge enters final orders. Final proof simply means you testify under oath that your marriage is irretrievably broken and the factual statements in the Findings & Conclusions of Law are correct. Usually the judge or commissioner will simply swear you in and ask these questions at the ex parte hearing. Some counties instead require unrepresented parties to enter final proof on a pro se dissolution calendar. That varies from county to county and is beyond the scope of this article. You might need to speak with a local attorney, LLLT, or family law facilitator for guidance.

If you encounter this situation, you should still be able to get a default order at a normal ex parte hearing. You just won’t be able to get the court to enter final orders as quickly.

D. If There Are More Parties. To enter default judgment (final orders without further proceedings), you’ll need to obtain default orders against all the parties in the case except yourself. Usually that’s easy, because there’s only one party beside you. But sometimes there are others. If that’s the case, you can still obtain a default order against the party(ies) who neglected to respond on time. You then proceed with the case as if a default order hadn’t entered, only the defaulted party(ies) can’t participate.

II. Moving for Default if the Responding Party Appears.

You probably won’t be able to get an order of default if the responding party appears. You’ll have to give the other side at least a week’s notice of your motion, and that warning prompts him or her to submit a response to the petition before the hearing takes place. The court can’t enter a default order with a response on file.

You can try though, and you sometimes have to. Moving for default is the only way to force the other side to submit a response to the petition, and many counties won?t allow you to go to trial until the other side responds.

Here’s how to move for default when the opposing party appears:

1. Get Your Documents Ready. Prepare a i) Motion for Default and ii) Order on Motion for Default (default order). These are fairly self-explanatory fill-in-the-blank forms you can download from the Washington Court Forms website under Family Law > Divorce > Default. Use the same forms in all family law cases, not just divorces.

On the back of the motion attach a copy of a certificate from the Defense Manpower Data Center (DMDC) showing the opposing party isn’t in the military. Download the certificate from the DMDC website. You’ll need to create an account and enter the other side’s social security number or birthdate to access the certificate.

You’ll also need proof of service of the petition, sometimes called a Return of Service, Affidavit of Service, or Declaration of Service. Your process server should have completed this document at the time of service, though he or she can complete it after the fact if necessary. You can download a template from the Washington Court Forms website under Family Law > Divorce > Divorce.

Lastly, prepare a calendar note, sometimes called a hearing notice. This tells the other side when and where the court will hear your motion for default. Often counties have their own calendar notes, and you can download them from the county’s superior court website. Sometimes the calendar note contains instructions on when and where you should set the hearing. If not, you might be able to find the answers in the local county rules. More often you’ll need to speak briefly with someone familiar with the county’s norms, such as a local attorney, LLLT, or family law facilitator. Facilitators are the least expensive option at $10 per session but can only answer basic questions.

Don’t prepare final orders at this point. Chances are you won’t need them.

Make several copies of all your documents, for a total of at least four sets including the originals.

2. Where & How to Send Your Documents.

A. File the Originals. File the original set with the clerk’s office for the county superior court. Usually this is done in person, but some counties, such as King County, offer electronic filing through a web portal. Electronic filing is almost always optional for unrepresented parties (parties without attorneys) – you can almost certainly file physical copies the old-fashioned way if you’re representing yourself.

B. Working Copies to the Jurist. Deliver a set of working copies for the judge or commissioner hearing the motion. Ask around at the courthouse to find out where working copies go. There’s probably a drop box someplace. Often you’ll need to stamp the upper right corner of the first page and fill in the stamp’s blanks with routing information. You’ll know, because there’ll be a stamp of this sort sitting next to the working copy drop box. Routing information means the date and time of the upcoming hearing and where the working copies should go. You can find out where the document are supposed to go by looking at the calendar note. The documents go to the judge, commissioner, or hearing calendar named there.

When delivering working copies, you might also need to insert the top document into a machine that marks the time and date you dropped off your materials. If so, there’ll be a machine sitting next to the working copy drop box.

As with filing documents, some counties have electronic systems for submitting and routing working copies. Rest assured, you probably don’t have to use the electronic system if you’re a layperson representing yourself.

C. Serve a Set on Each Party. Serve a set on every party to the case. Often there’s only one other party – the party you’re defaulting. But sometimes there are more, such as a Guardian ad Litem and/or county prosecutor.

You can find the allowed methods of serving documents in How to Serve Papers. Skip to that articles third section, captioned “How Do I Send Documents that Don’t Need to Be Personally Served”.

D. Save a Set. Save a set of your responsive documents for your own records.

3. Confirmation. In many counties, you must confirm your hearing about two court days prior to the hearing date. Whether you need to confirm, the confirmation deadline, and the method of confirmation vary from county to county. Again, you might want to speak with a local facilitator. If the county requires confirmation, make sure you do it. Otherwise the hearing won’t take place.

If the other party files a response to your petition, don’t confirm the hearing. As mentioned, you won’t be able to default the other side with a response on file.

4. The Hearing. Your hearing will be at the date, time, and location stated in the calendar note or hearing notice. Again, don’t bother showing up for the hearing if the other side has finally submitted a response to the petition. If you haven’t received a response yet, arrive for the hearing at least fifteen minutes early. Tell the courtroom clerk you’re present, and wait for your case to be called. Once you’re called, state why you’re there.

If the opposing party still hasn’t submitted a response to the petition, the court should ask you to hand forward your default order for the judge’s or commissioner’s signature. After the jurist signs, make at least one copy of the default order and file the original with the superior court clerk’s office.

5. Entering Final Orders. Congratulations if you’ve gotten to this stage in the process. You’re one of the few people to successfully obtain a default order despite the other side’s appearance.

If your petition was detailed, you can draft final orders and present them quickly and easily in an ex parte motion for default judgment. Find forms for the final orders on the Washington Court Forms website under Family Law > [Your Case Type]. Mirror whatever you requested in the petition (and proposed parenting plan and child support worksheets, if any). The rule pertaining to defaults – Court Rule 55 – says you cannot request anything more than you asked for in the petition. Then proceed to step I(3)(b), above. It explains how to enter your final orders by default judgment in an ex parte hearing.

If your petition wasn’t sufficiently detailed to enter final orders by ex parte default judgment, keep reading below.

III. Entering Final Orders if the Petition Isn’t Detailed.

The clearest means of entering final orders in this situation is to proceed with the case as if there were no default order. In fact, this might be only way of entering final orders if your case involves additional responding parties who aren’t defaulted. Thankfully the defaulted party(ies) won’t be able to participate in the case anymore. That should make it much easier to convince the court to grant any reasonable relief you request.

This might not be an ideal outcome, however. It typically means you’ll eventually end up in trial, where you’ll put on evidence and a judge will decide what final orders to enter. Trial preparations can be incredibly time consuming.

You might be able to enter final orders faster by filing a motion for entry of final orders. No rule or law specifically authorizes the court to enter final orders this way, but judges and commissioners sometimes allow it. CR 55 says the court should “conduct such hearings as may be necessary”, and case law indicates affidavits/declarations are acceptable forms of proof. Just make sure to support your motion with facts sufficient to convince the court your requested relief is reasonable.

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