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:
- 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)
- The original and not less than one copy of the proposed default judgment
- A certification indicating the type of service made on the defendant and the date of service
- 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