When many people think of lawsuits, they think of highly contested legal showdowns that take place in front of a judge or jury. This is likely based on news stories or movies that contain situations of conflict, twists, and turns. For some people, the end result of their civil lawsuit is much more anticlimactic. This is because sometimes people choose not to respond or fight against lawsuits. This is where it is important to understand “default” judgments.
What is a Default Judgment?
In civil lawsuits North Carolina Rule of Civil Procedure 55 allows for “default” judgments against parties who do not timely respond to a lawsuit after being properly served with citation. In essence, the person who has been properly served with citation waives their right to defend themselves in court if he or she fails to respond.
There is a two-step process that must be satisfied for a plaintiff to obtain a default against a defendant: the entry of default, then a default judgment.
Entry of Default. Prior to obtaining a default order (or judgment), the plaintiff (or moving party) must first seek the “entry” of default from the clerk of the court or from the trial judge. This is an important legal step that essentially prohibits a defendant from fighting the legal claims at issue. The defendant has thirty days to respond after being served with citation with an “answer” or other legal response. The court can grant an extension to allow additional time to answer.
Default Judgment. Only after an entry of default can a plaintiff obtain a default order against a defendant. Because everyone is entitled to due process of law, the court must make sure that the plaintiff has properly served the defendant. This must be through personal service, service by publication, or some other authorized method of service.
Significantly, there are limits to default judgment. For example, a default judgment cannot issue against a child or incompetent person unless that person has been appointed a guardian ad litem. In addition, judgments involving damages may be subject to bond or further review by the court.
Why Would a Person Default?
There are numerous reasons why a person would default. A common basis is that they are not opposed to the relief that the plaintiff is seeking. For example, a spouse files for absolute divorce, and the other spouse also wants the divorce and has no qualm with a finding that they have lived separate and apart for a full year. In this case, a spouse may either file an answer and simply agree to the order, or choose not to respond at all and become subject to a default divorce judgment.
New Direction Family Law
If you are seeking legal assistance with a family law matter involving a separation, divorce, or child custody dispute, we want to help you. At New Direction Family Law, know that this is your life, and that the decisions that are made during this difficult time matter. Our attorneys take great pride in listening to our clients and making sure that their desires are heard. Our firms serves Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Contact New Direction Family Law at (919) 719-3470 to schedule a consultation or reach us online at our website.
Sarah J. Hink
New Direction Family Law