This is the next post in a series of articles discussing filing for divorce when one cannot locate their spouse in Little Rock, Arkansas. My previous post reviewed how judges will generally resolve common divorce issues if one party is missing from the proceeding. The court will rely upon the information provided by one side only when issuing its default judgment. It is important, therefore, to present accurate evidence to the court. It is also important to understand that the judge will not provide more favorable treatment to the filing spouse than would have otherwise applied had their spouse been present. In this post, I will address another possible issue in divorces when a spouse cannot be located – when the missing spouse returns and challenges the default judgment. If you need assistance, contact my office today to speak with an attorney.
After going through the process required to obtain a divorce when one’s spouse cannot be located, the possibility of the case being re-opened if the spouse returns may be a frightening one. Under Arkansas law, however, this is a possibility. Default judgments may be set aside for a variety of reasons. These include situations in which the default judgment was entered as a result of the defendant’s mistake, inadvertence, surprise, or excusable neglect. Other justifications may include when the filing party engaged in fraud or misrepresented information to the court when obtaining the judgment. In addition to these reasons, Arkansas allows a person subject to a default judgment to challenge them based on any other reason justifying relief. For obvious reasons, this broad standard is not difficult to meet. It is not uncommon, therefore, for a missing spouse to successfully re-open their divorce case.
One’s ability to challenge a default judgment is based on the fact that a person should be allowed to participate in legal proceedings against them to avoid a miscarriage of justice. This does not necessarily mean that a default divorce decree will be altered as a result of the challenge. It is possible for the court to review the case, determine that its initial ruling was fair, and decide that the terms of the order remain the same. If, on the other hand, the missing spouse demonstrates that the default judgment was the result of the filing party’s fraud or misrepresentations to the court, it is likely that the judgment will be revised. For instance, if a filing spouse purposely used incorrect addresses and contact information when attempting to locate the spouse simply to avoid normal divorce proceedings, the court would likely overturn the judgment. If the plaintiff provided false financial information in order to gain a larger settlement than would have otherwise been granted, the judgment may be changed. It is imperative to honestly and accurately present all information to the court to preserve the terms of one’s default judgment.
Consulting with an experienced divorce lawyer if you are seeking divorce by publication can help you avoid common pitfalls and mistakes. If you need assistance, contact my office to speak with a Little Rock attorney. In addition to Little Rock, I also handle matters in Fayetteville, Fort Smith, Springdale, Jonesboro, North Little Rock, Conway, Rogers, Pine Bluff, and throughout the rest of Arkansas.