Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
The Florida Family Law Rules of Procedure allow a court to enter a default final judgment against a party who fails to timely respond to a petition. A default means the petitioner’s well-pled allegations are taken as true. A party against whom a default has been entered can file a motion to set it aside. This was an issue in the case Toledo v. Torres, 3D25-0552 (Fla. 3d DCA April 1, 2026).
The former husband filed a motion to vacate a default final judgment of divorce, alleging the former wife misled him into believing she abandoned her petition and told him not to attend the final hearing. Because the former husband failed to request to set aside the underlying clerical default, the trial court denied his motion. He appealed.
The appellate court first noted that the underlying default would stand, citing case law concerning due diligence in addressing a default: See Lazcar Int’l, Inc. v. Caraballo, 957 So. 2d 1191, 1193 (Fla. 3d DCA 2007) (finding “a six-week delay in filing a motion to vacate a default after receiving notice constitutes a lack of due diligence as a matter of law”); Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329, 1330 (Fla. 4th DCA 1978) (“[S]wift action must be taken upon first receiving knowledge of any default.”).
The court ultimately concluded “In re Guardianship of Schiavo, 800 So. 2d 640, 644 (Fla. 2d DCA 2001) (‘A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief.’ [. . .] We therefore reverse and remand for an evidentiary hearing.”
Nothing in this article is legal advice. For specific advice about your case, schedule a meeting with a Miami divorce lawyer.