Guidelines For A Default Divorce
A default divorce may occur when both parties agree on all issues. There are basic steps and documents required to complete a default divorce.
1. COMPLAINT – (You will need an original and two copies)
a. Must contain a standard court heading, including jurisdiction of court, the parties’ names and social security numbers, the title of the document, blank space for case number. The person bringing the action (you, the plaintiff) must also include his/her name and address and telephone number on the top left hand corner of the first page of the Complaint and every other document filed.
Information that must be included in the Complaint: the parties’ names, the date of marriage, statement as to the residency of the plaintiff; whether or not children have been born as issue of the marriage (if so, state names, ages, how children will be supported, who will have custody, how/when visitation will take place, etc.); division of assets and debts; and the grounds for divorce. If either party desires to have their previous surname reinstated, that must be stated in the Complaint.
b. Plaintiff must have been a resident of the State of Idaho for more than six weeks immediately preceding the filing of the divorce.
c. If there are minor children, child support should be calculated in accordance with the Idaho Child Support Guidelines, Rule 6 (c) (6) of the Idaho Rules of Civil Procedure (I.R.C.P.). Affidavits of Income of both par-ties and a Child Support Worksheet must be included in the file before a Decree of Divorce can be entered. The judge cannot order child support (or non-payment of childsupport) which deviates from the Guidelines without good cause, stated eitheron the record under oath or by filing a written notarized affidavit.
d. The Complaint should be verified (signed by you before a Notary Public).
3. FILING THE COMPLAINT AND HAVING THE SUMMONS ISSUED.
The original and two copies of your Summons and Complaint should be taken to the district court clerk (Court Records – Room 218) for filing. The current filing fee for a divorce complaint must be paid in cash or by money order. The clerk will keep the original of the Complaint for the court file, and return to you the copies of the Complaint and both the original and copies of the Summons for service on the defendant.
4. SERVICE OF PROCESS (see I.R.C.P. 4).
Service of process on the defendant is accomplished by personal service; publication in a newspaper for four consecutive weeks (also see Idaho Code Sections 5-508,5-509); acceptance of service.
The defendant then has twenty (20) days from personal service or 20 days from the date of the last publication (begin counting the day after service) to file an Answer to the Complaint.
Affidavit of Service.
Once the defendant is served, the process server should provide you with a signed affidavit of service of process, stating the date, physical address and person served. The affidavit is attached to the original Summons and filed with the clerk of the court.
5. IN THE INTERIM.
During the 20-day waiting period you can prepare your default documents and your Judgment and Decree of Divorce. Also, if children are involved, you must have Affidavits of Income and a child support worksheet that verifies child support is set in accordance with the Child Support Guidelines.
- WHEN WAITING PERIOD HAS EXPIRED AND NO APPEARANCE HAS BEEN MADE BY DEFENDANT.
File the original Summons with Affidavit of Service if you have not already done so. Prepare and file with the clerk of the court an Application for Clerk’s Default, which includes the address to provide defendant with a copy of the judgment and Decree of Divorce, and an Affidavit’, signed by you before a notary public, stating the date of service, that more than twenty (20) days have elapsed, that defendant is not in military service (Soldiers and Sailors Civil Relief Act).
Finally, prepare your Judgment and Decree of Divorce. This document contains the same information within the Complaint, but is stated as an order. It includes the date of default and that the defendant did not appear. Then the order begins stating dissolution of the marriage bonds, going on with child, asset and debt issues. You can attach to the Decree the same attachments you prepared for your Complaint. Be sure to have an original and two extra copies (three extra copies if there are children) of the Decree and an envelope addressed to the defendant with sufficient first class postage to mail a copy of the Decree with any attachments to the defendant.
Make an appointment with the appropriate judge’s clerk for your default divorce hearing. This date must be at least twenty days after service of process, last publication or, if children are involved, after the parenting class date.
7. THE DEFAULT HEARING.
At the hearing, when the judge calls the case, the clerk will swear in the plaintiff. The plaintiff will testify on the information contained within the Complaint. Information that must be included in the questioning is the plaintiffs name, the date of marriage, that the plaintiff has lived in Idaho at least six weeks preceding the commencement of the divorce., that there are or are not children at issue of the marriage (if so, state names, if child support is reasonable, etc.), if the division of assets and debts is reasonable, the grounds for divorce, and finally if every attempt at saving the marriage has been made and if the plaintiff believes divorce is the inevitable end. The judge may ask any follow-up questions necessary.
8. FINAL DOCUMENTS.
In order to have the divorce effectuated a vital statistics form must be obtained from the clerk of the court and completed and, if there are children, a Child Support Order Transmittal Form must also be completed and provided to the clerk.
A certified copy of the judgment and Decree of Divorce will be given to the plaintiff and the defendant will receive his or her copy by mail.
[ ] Complaint
( ) Heading with all information
( ) Residency
( ) Children (Guideline info, etc.)
( ) Community Assets (Exhibit?)
( ) Community Debts (Exhibit?)
( ) Grounds (I.C. 32-603)
[ ] Summons
[ ] Affidavit of Service (after service of process complete)
[ ] Filing Summons, Affidavit of Service and Affidavit and Application for Clerk’s Default
[ ] Set default date
[ ] Default hearing
( ) Judgment and Decree of Divorce
( ) Addressed, postage paid envelope
( ) Vital statistics form
( ) Child Support Worksheet (if children)
( ) Affidavit Verifying Income (if children)
( ) Child Support Order Transmittal Form (if children)
These Giudelines reprinted in part from die article entitled “Revisiting the Basics: Guidelines for a Default Divorce” written by Keri Cobb Hamilton, Esq. mid published in Idaho Trial Lawyers Association Journal, Volume 27, Number 3, with the permission of Idaho Trial Lawyers Association (208-345-1890) .