When a party named in a divorce fails to respond or otherwise defend the lawsuit the other party can request the entry of a default by filing with the court a request and affidavit. Once a default is entered the other party can request the entry of a default Judgment of Divorce allowing the divorce to proceed without input from the absent party.
Once a Judgment of Divorce is entered (with the exception of custody and support), it is final and non-modifiable. However, there is a short window by which the non-compliant party can request the default be set aside.
On Mach 29, 2019, the Michigan Court of Appeals considered the Defendant’s request to set aside a default in the case of Ahles v. Ahels after the trial court refused to set aside a default entered against him for failing to plead or otherwise defending the lawsuit and failing to attend a pretrial hearing.
In denying Defendant’s request, the Michigan Court of Appeals noted that:
“. . . .the policy of this state is generally against setting aside defaults and default judgments that have been properly entered.” Citing Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 227; 600 NW2d 638 (1999)
The court rule applicable to setting aside a default is found in Michigan Court Rule 2.603(D)(1), which states, “A motion to set aside a default or default judgment, except when grounded on lack of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.”
A party can show good cause in three ways: First by showing a “substantial defect” in the proceedings upon which the default was based and second, by “a reasonable excuse” for failure to comply or three, to avoid injustice which would result in allowing the default to stand.
However, showing good cause is not enough. The party must also demonstrate a meritorious defense which is sometimes hard to do.
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By: Daniel Findling