Some defendants elect not to answer a divorce petition filed under Article 103. An Article 103 divorce is an ordinary proceeding, which requires that the defendant answer. If the defendant fails to do so in the time set forth in La. C.C.P. art. 1001, the petitioner can take a default judgment against the defendant.1 For a court to grant a default judgment, the plaintiff must ”establish[] a prima facie case by competent and admissible evidence.”2

Because a defendant in a default judgment can be cast with costs, you should ask the court to assess the defendant with court costs. Remember to provide the address of the defendant to the clerk of court, who will need it to bill the defendant. 

• 1On these time periods, see Section 3.6.6.
• 2La. C.C.P. art. 1702(A).

Before the 2021 change in the default judgment articles, a petitioner seeking a default had to file and receive a preliminary default, then wait the required number of days, and then submit a default judgment. This procedure has been repealed.1

• 1Acts 2021, No. 174, Sec. 6.

A default judgment ordinarily requires a hearing where the plaintiff will establish the prima facie case. In a divorce proceeding, this is typically done through the plaintiff’s oral testimony.

However, if the defendant does not file an answer to a petition under La. C.C. art. 103(1) or (5), your client may take up the divorce and the ancillary issues (e.g., custody) by default without having to go to court.1 To so, the plaintiff must submit:

1. An affidavit specifically attesting to and testifying as to the truth of all of the factual allegations contained in the petition (i.e., an affidavit of correctness)
2. The original and not less than one copy of the proposed default judgment
3. A certification indicating the type of service made on the defendant and the date of service
4. A certification by the clerk that the record was examined by the clerk, including the date of the examination, and a statement that no answer or other pleading has been filed2

The affidavit should also attest that the defaulting spouse is not in military service, that there are no minor children of the marriage and that neither spouse is pregnant, and that the marriage is not a convent marriage. Courts usually require a checklist or a certification form showing that the above requirements have been met.

In addition, if the defendant waives formal citation, service of process, all legal delays, notice of trial, and appearance at trial, the default judgment can be signed two days after the affidavit is filed.3 It is a good practice to include the specific issue on which the default is being taken in the waiver. The defendant’s affidavit may be prepared or notarized by any notary public.4

Be sure to check with the court before assuming that your judge will sign a default judgment prepared pursuant to La. C.C.P. art. 1702(F) as some judges insist upon the litigants appearing in open court. Some courts, even if allowing represented litigants to proceed by affidavit, will not allow a self-represented litigant to use the procedure to obtain a default judgment without going to court. Instead, the court will require the litigant to establish a prima facie case at a hearing. 

The affidavit attesting to the truth of the facts in the divorce petition needs to be executed as close as possible to the time when the divorce judgment is filed in order to assure that it is accurate. For example, the parties could have reconciled, opted into a covenant marriage or a wife could have become pregnant by a person not her spouse. Some courts may require the testimony of two corroborating witnesses (another reason to always read the local rules) and most will not allow the other spouse to be a corroborating witness. If the affidavit attesting to the truth of the divorce facts is presented to the court, it must render a divorce judgment on the affidavit or direct that a hearing be held on the divorce.

Custody can also be decided in a default judgment on the divorce petition. Any concerns that a judge may have as to the court’s duty to review the best interest factors in custody cases can be addressed by making sure that the petition, prayer, and the affidavit of correctness contain the relevant best interest factors as well as good cause for not having a custody implementation plan. Generally, assuming you have sufficient proof of service and the adverse party just hasn’t filed an answer or bothered to appear, the court will conclude that the non-responding parent has little interest in having custody of the children. The issue can be addressed later should the non-participating parent seek custodial rights.

In addition to the requirements to obtain a default judgment by affidavit for a no-fault divorce,5 the petitioner must also submit a certified copy of the protective order or injunction rendered after a contradictory hearing or consent decree.6

• 1La. C.C.P. art. 1702(F)(1).
• 2Id.
• 3La. C.C.P. art. 1702(F)(2).
• 4Id.
• 5For these requirements, see Section 3.7.3.
• 6La. C.C.P. art. 1702(F)(1).

If the party who fails to answer has made an appearance of record in the case, notice that the plaintiff intends to obtain a default judgment must be sent by certified mail to counsel of record for the party, or if there is no attorney of record, to the party, at least 7 days before a default judgment can be rendered.1

If an attorney for a party who fails to answer has contacted the plaintiff or his attorney, in writing, concerning the action after it has been filed, notice that the plaintiff intends to obtain a default judgment must be sent by certified mail to the party’s attorney at least 7 days before a default judgment may be rendered.2

Examples of an “appearance” include filing an exception or a motion for a continuance, filing a motion for an extension of time to answer, or attendance at the Hearing Officer Conference. An affidavit or certificate of service of the 7-day notice should be filed into the record.

• 1La. C.C.P. art. 1702(A)(2).
• 2La. C.C.P. art. 1702(A)(3); see id. cmt. 2021(a) (providing that notice may be sent electronically or any other type of writing and that if notice is not given, any default judgment shall be a nullity); First Bank & Trust v. Bayou Land & Marine Contractors, Inc., 12-CA-295 (La. App. 5 Cir. 10/30/12), 103 So. 3d 1148.

In many jurisdictions, the delays for answering a petition will expire before the date scheduled for the rule hearing on ancillary matters such as child support. Most judges will not permit you to proceed with a confirmation of default for the divorce if a rule was filed and the date for the rule hearing has not passed. 

Many defendants fail to answer the Petition for Divorce because Support Enforcement Services is already handling the client’s claim for child support. Both legal services attorneys and pro bono attorneys discover early on that some adverse parties are most concerned with the amount of child support they are going to be ordered to pay. Moreover, a defendant will often fail to file an answer in cases where custody is undisputed. In such cases, it is often better to defer the setting of a hearing on a Rule for support or other ancillary matters unless there are critical issues that need to be addressed immediately, such as a protective order, support, or use of the family home. 

Generally, after interviewing your client, you will know whether the lawsuit will be contested or whether your client will benefit from a rule hearing. At the initial interview, the attorney should identify the client’s real goal in suing for divorce. Is there mistreatment or violence in the marriage that would make obtaining a divorce or a protective order the primary goal? Is the client without means of support for herself and children, making support orders a top priority? Are the client and the children in need of safe shelter or a vehicle? Often, the client will need all these issues resolved. If so, it is important that the attorney get the client in front of the court as expeditiously as possible. 

Although some judges will require an oral hearing in all divorce proceedings whether they are with or without ancillary provisions, confirmation of maiden name and any reservation of community partition rights should be available via the affidavit procedure because they do not require evidence. 

Child support, sole custody, or permanent injunctive relief require prima facie evidence that supports the relief sought, which may require setting the matter for hearing. The use of the Hearing Officer Conference, if available, may also require that the ancillary matters be set as a summary proceeding. Some courts will not allow the ancillary matter of child custody in a divorce to be confirmed without a hearing because, in the absence of an agreement, the pleadings, affidavits, and evidence must support an award of child custody being made in accordance with the best interest factors of La. C.C. art. 134.1

• 1Byrd v. Byrd, 621 So. 2d 124 (La. App. 2 Cir. 1993).

If the defendant was not personally served with the Petition for Divorce, notice of the judgment of divorce, which was obtained by default, must be served on the defendant by the sheriff.1 If the defendant was personally served with the divorce petition or the divorce was contested, the notice of judgment must be mailed by the clerk of court.2 Long-arm service of non-residents by certified mail or commercial courier qualifies as “personal service” for this notice-of-judgment rule. The notice of judgment is required to start the running of the 30-day appeal period.3 However, notice of judgment is no longer required in Article 103(1) divorces (i.e., those based on physical separation) when the defendant, as is common, waives notice of judgment when waiving service.

• 1La. C.C.P. art. 1913(B).
• 2La. C.C.P. art. 1913(C).
• 3La. C.C.P. art. 3942(A).

There are some potential risks to the spouse of a service member or ex-service member in taking a default divorce judgment. If the court does not meet the federal requirements for jurisdiction,1 the spouse may be left with an unenforceable order as to the military pension. If the state that does have jurisdiction does not allow partition, the spouse could also be left without a remedy. Failure to expressly reserve jurisdiction over partition of the community may also cause problems for the spouse in the divorce jurisdiction or a foreign jurisdiction. If a service member files for a divorce, the spouse should make an appearance and either request a pension division or challenge jurisdiction.2

• 110 U.S.C. § 1408(c)(4).
• 2M. Sullivan, The Military Divorce Handbook 641, et seq. (2006).