A Default Is When One Party Has Put Forth A Claim, And The Other Party Either Doesn’t Respond Or Doesn’t Show Up.
Video Transcribed: What is a default? My name is Ryan Cannonie, I am the Tahlequah criminal defense attorney for Wirth Law Office in Cherokee County. I want to talk a little bit about default. In legal terms, a default is when one party has put forth a claim, and the other party either doesn’t respond or doesn’t show up.
There’s only one side making an argument, basically. So in family law, when you are served with the petition for divorce when you’re served with any of the documents, most of those items that you’re given have a certain time limit to be responded to.
They also have a court date, like on a summons. You’re going to get that with your petition. You’re going to have a court date.
If you fail to appear, if you don’t file an answer, then the court can, if the party on the other side asks for it, consider what’s called a default.
Now defaults aren’t favored. The courts abhor them in a way because there’s all types of reasons why a person may not respond or be there, and so they’re not usually the first tactic.
But they are something in the arsenal for family law and other cases, civil as well, where you can ask for a default and ask the court to say, “Hey, here’s what we said.”
They haven’t responded, so you have to take what we said. This is what’s right. Give us what we want.” If you are finding yourself in this situation, if you’ve been served a petition for divorce with a summons, you’ve been served some type of court document, it’s really, really important that you go talk to an attorney as soon as you can.
Recently, I was speaking to an individual who was saying, “Yeah, I know I got this back in May, but I’m trying to get the money to hire an attorney,” and I completely understand that.
However, the court’s not something that’s just going to wait on you. Judges aren’t just sitting around, hoping you come in and take care of your business. If you don’t take a proactive stance, if you don’t go find an attorney… A lot of attorneys, including us, have a payment plan system to help people out.
We know, especially with the pandemic and the economy and everything that’s been going on for the past what feels like a decade but has only been a year, people are in a hard spot right now.
So it’s important you find someone that can go and help you because if you keep waiting and waiting and waiting, then you’re going to miss your court date.
You’re not going to be there. You’re not going to have responded to anything. And as far as the court knows, you don’t care, especially when we’re talking about your assets or maybe even child custody matters, guardianships.
The court can issue a guardianship to someone if you don’t show up, based on that person’s testimony. And deprived, and I know I mix family and deprived, but a lot of times there’s so much going on between.
There’s a lot of connections between the two that in these videos for family law, they kind of stretch into deprived and vice versa.
But in deprived, if you get served with a notice of termination of parental rights or even more so if they can’t find you, and they publish it in the newspaper. It doesn’t have to be the newspaper where you live, just the county newspaper for the court, and they’ll send something to your last known address.
Let’s say you’ve moved two times since then. They publish it in the local paper. They don’t publish “Hey,” big words, “John Smith, come to court.” They’ll put a little brief paragraph thing, a couple of paragraphs actually, with initials of your child and your name, and that’s it.
And if you don’t show up on that day, you are losing your parental rights. Family law is similar on that. If you don’t show up, you don’t respond, you could stand to lose out pretty drastically.
So it’s very important when you get your papers, as soon as you get them, to go talk to an attorney and to discuss your options and discuss what their fee rate is. Their retainer fee or a flat fee. What just options you have.
Some attorneys will even maybe draft up an answer for you based on what you’re talking about, but may not get fully into a case. They may just be able to help you out. I’ve seen that done a few times in forfeiture proceedings, which is a completely different context.
If the state’s trying to forfeit your property, sometimes people, instead of hiring an attorney to represent them all the way, we’ll just hire an attorney to do an answer for them until they can afford the attorney later on.
Whatever the situation is, if you find yourself being served with papers, contact a Tahlequah family attorney. We can look over everything that’s going on and see if we can help. Thank you.
