What to do if you have been defaulted in a Montana divorce or parenting caseMarybeth Sampsel
If you have ever been served with legal paperwork, you have likely seen and, hopefully, read a Summons. Though drafted by opposing counsel or the opposing party, a Summons is actually issued by the Clerk of Court. The Summons announces the deadline by which to respond to the paperwork you were served. In a divorce/dissolution or parenting plan case, you are allowed twenty days from the date of service to respond to the Petition. If you fail to respond in twenty days, the opposing party may request the court enter your default.
If your default has been taken and you wish to continue with the case, you will be unable to do so until you first have your default set aside. This means, you must prove to the court that the default was incorrectly entered against you or you have some reason that you were unable to respond in a timely manner.
Under the Montana Rules of Civil Procedure, the court may set aside a default for good cause. In order to establish good cause, a defaulting party must show: (1) the defaulting party proceeded diligently; (2) the defaulting party’s neglect was excusable; (3) the defaulting party has a meritorious defense claim; and (4) the judgment, if permitted to stand, will affect the defaulting party injuriously. See Mountain Sports, Inc. v. Gore, 85 P. 3d 1286, 320 Mont. 196 (2004).
If successful in having the default set aside, a divorce or parenting case then proceeds normally, as if the default had never happened. Setting aside a default can be complicated and I am not aware of readily available forms for pro se litigants to use in such a circumstance. If you have been defaulted in a case, contact an attorney as soon as possible. If you cannot afford an attorney, contact Montana Legal Services or your self-help law center.