True Default

MN Statute 518.13 FAILURE TO ANSWER; FINDINGS; HEARING.

Rule 55 Default

Rule 306 Default

What is a True Default proceeding?

A “True Default” (otherwise known as a default) is when the Petition and Summons have been properly served on a party (either by personal service, admission of service, or service by publication) and no Answer & Counter Petition has been received within the required time frame.

What does it mean to proceed by default?

Proceeding by default means that the Petitioning party will be asking the Court to enter a default judgment against the other party. For divorce and custody cases, it means that the Petitioner will be asking the Court to sign the proposed order they’ve prepared without any input or response from OPP, essentially, granting Petitioner with everything they want (as laid out in the proposed order)

Is there always a court hearing with default proceedings?

Not always.

If there are children, there MUST be an actual default court hearing where the Court will go over the proposed default order that has been filed with the Court. The Court will ask questions about what is being proposed, probably some stuff about best interest of the kids, division of assets, questions to ensure OPP was properly served, and clarify anything else the Court may have questions on.

If there are NOT children, then a hearing is NOT required, and the Court could just sign off on the proposed default order that is filed with the Court. However, the Court can, in their discretion, require a hearing on the matter. At the hearing, the Court would likely ask questions to ensure OPP was properly served, division of assets, and any clarifying questions the Court may have.

What does it mean when rules/forms reference that OPP “appeared” or “responded” but they didn’t ever serve or file an Answer & Counter Petition

Throughout the rules regarding default, and also regarding the instructions on how to proceed, it regularly discusses how OPP may “appear” or “respond” to the proceeding without filing an Answer and Counter Petition. Per advisor committee comments “The rule does not define how a party might appear either by “a pleading other than an answer,” or “personally without a pleading.” Both conditions should be limited to actions that approach responding to the Petition despite the fact they may be insufficient as a matter of law to stand as a response. Sending a letter that responds to a Petition might suffice for the first condition, as might a letter to the court. Appearing at a court hearing despite having not answered would certainly meet the “appeared personally” condition. When in doubt as to other circumstances, the party seeking a default should, to comply with Rule 306.01(b), provide the required notice, with the expectation that many of these responses that fall short of an answer will not prevent entry of judgment.”

The ways that we have seen this “appeared” or “responded” look include OPP sending a letter or email saying they don’t agree to the Petition, but don’t have enough money to hire an attorney or don’t know what they need to do next. It could also be a call OPP makes to the office saying they got the documents but don’t plan to respond. Always error on the side of caution and assume that if OPP has reached out to us in anyway (email, phone, or letter) that they have “responded.” This DOES NOT MEAN WE CANNOT PROCEED BY DEFAULT. It simply changes the response just slightly and will require an additional notification to OPP (Notice of Intent to Proceed to Judgment) , as outlined below.

What to consider before proceeding by default

Proceeding by default often seems like a great idea when no Answer has been received. It seems like it’ll be a quick way to get our client (essentially) everything they want by drafting a proposed default order that is entirely in our client’s favor. And while this can be true, Courts seem to be hesitant to grant “true defaults” in situations where OPP shows up to the default hearing or eventually provides an Answer, even if it is significantly late.

It’s important to balance the cost of drafting all the default documents versus the likelihood that OPP may provide an Answer prior to the default matter being finalized OR the likelihood that OPP will show up at the default hearing. If either of those things happen, the attorney will still argue to proceed by default because OPP has not provided an Answer in the appropriate timelines and the Judge could still grant the default request and sign the proposed order. However, more often than not, the Judge will essentially say that OPP is appearing or responding now and that the divorce/custody matter should proceed like normal (usually recommending mediation). I think this is especially likely in cases where kids are involved.

Rule 306 Advisor Committe Comment addresses this when it states “A party is not entitled to prevent entry of judgment if that party is in default by not serving and filing a timely written answer to the Petition. Nonetheless, the court may, in its discretion, consider some appropriate measures to prevent the case from being decided on a default basis and to obviate a motion for relief from the default judgment and decree.”

Again, this is not to say that true defaults can’t happen and that they aren’t worth trying, but it’s important for us to know (and to inform our clients) that we could do everything we are supposed to, OPP could do nothing but show up at the default hearing, and the Judge could still decide not to proceed by default. In that situation, the time spent drafting the default documents would essentially have been for nothing.

To summarize – proceeding by default is necessary and Judge’s do grant default orders, but it’s important to talk to your client about all the possible outcomes before proceeding by default.

Documents to be drafted when proceeding by default

In addition to filing all the initial pleadings (including proof of service and conf info form), you will need to draft and file the following:

1. Default Scheduling Request (there are 2 different template options: divorce or custody/paternity)
2. Affidavit of Default (there are 3 different template options: divorce w/ children, divorce w/o children, and custody/paternity)
3. Affidavit of Non-Military (there are 2 different template options: divorce or custody/paternity)
   1. This document will be signed by the client
4. Proposed Default Order (there are 2 different template options: divorce or custody/paternity)
5. Notice of Intent to Proceed to Judgment (there are 3 different template options: divorce w/ children, divorce w/o children, and custody/paternity)
   1. This document MUST be completed and served on the other party if they didn’t serve/file an answer and counter petition, but did “appear” or “respond” in some way (as noted above)
   2. If the other party responded in no way (no emails, letters, calls) and appeared at no hearings, then you technically do not need to complete this document. HOWEVER, some judges want you to draft and provide this notice to the other parent regardless of if they didn’t respond or appear in anyway. We know this to be true in Olmsted County for sure. 
6. Affidavit of Mailing (for any of the documents you served by mail on OPP – see below for more info on when service is necessary)

Filing / Serving default documents

Filing: All the documents noted above will need to be filed with the Court once drafted and approved (along with all initial pleadings).

Serving: With the exception of the “Notice of Intent to Proceed to Judgment”, the other documents only need to be served on OPP if they “appeared” or “responded” in some way (as noted above). HOWEVER, Olmsted County appears to be the exception to this, as they want all the default documents, including the Notice of Intent, served on OPP regardless of whether they ever appeared or responded. Service can be done via mail, just make sure you complete and file and aff of mail.

Timelines for Default

There are a lot of different timelines that go into default proceedings, so please ensure you review all the dates carefully or you’ll end up at a default hearing too early and look ewww.

Dissolution without Children – This is the one type of default where the Court could finalize the matter without a hearing. As such, the deadlines are longer than with the other scenarios.

• If OPP was personally served: at least 51 days from date of service
• If OPP signed the acknowledgement of service: at least 51 days from the date of signature.
• If OPP was served via publication: at least 71 days from the first day of publication
• If OPP was served via mail (Only as approved by the Court in an Order for Service by Alternate Means): at least 71 days from the date of mailing
• Notice of Intent to Proceed by Default (if necessary) – Must be served via mail at least 14 days prior to the date of hearing

See 518.13 Subd 5 if there are questions about why we need to wait so long to file for default (even though the deadline for A&CP is 30 days).  “(1) if there are no minor children of the marriage, and (ii) the respondent has not appeared after service duly made and proved by affidavit and at least 20 days have elapsed since the time for answering under section 518.12 expired”

Dissolution with Children

• If OPP was personally served: at least 30 days from date of service
• If OPP signed the acknowledgement of service: at least 30 days from the date of signature.
• If OPP was served via publication: at least 51 days from the first day of publication
• If OPP was served via mail (Only as approved by the Court in an Order for Service by Alternate Means): at least 51 days from the date of mailing
• Notice of Intent to Proceed by Default (if necessary) – Must be served via mail at least 14 days prior to the date of hearing.

Custody/Paternity

• If OPP was personally served: at least 21 days from date of service
• If OPP signed an acknowledgment of service: at least 60 days from the date of signature
• If OPP was served via publication: at least 42 days from the first day of publication
• If OPP was served via mail (Only as approved by the Court in an Order for Service by Alternate Means): at least 42 days from the date of mailing
• Notice of Intent to Proceed by Default (if necessary) – Must be served via mail at least 14 days prior to the date of hearing