Posted by Nydia Streets of Streets Law in Florida Alimony
A party who can no longer comply with an order to pay alimony in Florida may file a petition for modification or termination of alimony. In filing a petition, a party re-initiates a lawsuit and the steps to initiate a lawsuit must be followed in order to comply with due process requirements in Florida family law cases. The other party must be served with the petition by a process server. Once served, the other party usually has 20 days to respond to the petition or a default judgment may be entered against the party.
A default is a technical “win” for the petitioner. The entry of a default judgment means the served party did not answer by the deadline so he or she admits all of the well-plead allegations of the petition. We see this in action in the case Ripley v. Ripley, 5D19-1182 (Fla. 5th DCA July 23, 2019). In this case, the former husband filed a petition to modify his alimony payments. His petition was served on the parties’ adult daughter who lived with the former wife. Twenty days passed and the former wife did not file a response to the petition. The clerk entered a default. Before a final judgment was issued, the former wife filed a motion to quash service and to set aside the default.
At the same time, the former wife filed a motion for contempt which was set for hearing. The former husband subsequently filed a motion for a final judgment upon the default which he noticed for hearing the same date. Thereafter, the hearing was cancelled and the judge issued two orders: one denying the former wife’s motion for contempt and another granting the former husband’s request for a final judgment on the default. The former wife then sought disqualification of the judge which was denied, and she then appealed via a petition for writ of prohibition.
Ultimately, the appellate court found some of the reasons on which the former wife relied to disqualify the judge were time-barred because she had not filed her motion for disqualification within the time specified by the rules. The court held, “Former Wife is correct that the judge should not have entered the March 27, 2019 order granting Former Husband's motion for default judgment prior to resolving her motion to quash service and set aside the clerk's default. However, this error did not demonstrate bias because the judge subsequently granted Former Wife a hearing on her emergency motions and considered the merits of her allegation of insufficient service. At the hearing, the judge ultimately found that valid substitute service had been made on Former Wife. The judge determined that because Former Wife failed to file a responsive pleading to Former Husband's petition for modification, Former Husband's motion for default judgment would be granted. The court's adverse ruling against Former Wife is not a sufficient basis to warrant disqualification.” (internal citations omitted).
Losing alimony by default can wreak havoc on a party’s financial stability. To avoid the loss of rights based on technicalities, consult with a Florida family law attorney as soon as you are served with a petition. A consultation may help you understand the best way to proceed so that your rights and defenses are preserved.