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Default and default Judgments in divorce and Family law cases

If you fail to make a timely credit card payment you are in
default which literally means a “failure
to fulfill an obligation
”. In divorce and family court cases a default may
occurs if you fail to appear, respond or otherwise defend the divorce, custody
or family court case.

Michigan
Court Rule (“MCR”) 3.210(B)
addresses default cases in divorce and family
court. However a default is not automatic. It must be requested by the other
party. To request the entry of a default MCR
3.210(B)(2)(a)
provides the rules for requesting the entry of a default:

 “. . . Upon presentation of an affidavit by a party asserting
facts setting forth proof of service and failure to plead or otherwise defend,
the clerk must enter a default of the party.”

If a default is entered, that party may not proceed with the
action until the default has been set aside. 
(See: MCR
3.210(B)(2)(c)
)

Setting aside a
default – good cause.

  • A party may request a court set to aside a
    default before entry of a Judgment by filing a verified (under oath) motion
    to set aside the default showing good
    cause
    . (See: MCR
    3.210(B)(3)
    )

  • A party may request a court to set aside a
    default after entry of a Judgment must be conditioned only if the motion
    is filed within 21 days after the default judgment was entered and if good cause is shown.  (See: MCR
    3.210(B)(6)(a)
    )

What is “good cause”
to set aside a default?

The Michigan Court of Appeals addressed this question in the
seminal cases of Koy v. Koy and
Saffian
v. Simmons

“Good cause sufficient to
warrant setting aside a default or a default judgment may be shown by (1) a
substantial procedural defect or irregularity or (2) a reasonable excuse for
the failure to comply with the requirements that created the default.”

Setting aside defaults is disfavored.

It is important to note that the law disfavors setting aside defaults and default judgments that have been properly entered underscoring the importance of having proper representation in every divorce, custody and family law case.

About Findling Law

Findling Law, PLC – 414 W. 5th St. Royal Oak, Michigan 48067

Phone:+1 (248) 399-3300
After hours emergency?+1 (707) 968-7347

Email:Daniel@Findlinglaw.com

DISCOVER MORE

I have been exclusively practicing divorce and family law in Michigan for over two decades.  The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles.  We are compassionatecreative and always prepared. We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.That is why we provide more free information on divorce and family law than any other Michigan law firm. We want to help you manage your situation. Allow our exceptional legal team to help you navigate the change in your life, without compromising principles.

By:  Daniel Findling

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