If you fail to make a timely credit card payment you are in default which literally means a “failure to fulfill an obligation”. In divorce and family court cases a default may occurs if you fail to appear, respond or otherwise defend the divorce, custody or family court case.
Michigan Court Rule (“MCR”) 3.210(B) addresses default cases in divorce and family court. However a default is not automatic. It must be requested by the other party. To request the entry of a default MCR 3.210(B)(2)(a) provides the rules for requesting the entry of a default:
“. . . Upon presentation of an affidavit by a party asserting facts setting forth proof of service and failure to plead or otherwise defend, the clerk must enter a default of the party.”
If a default is entered, that party may not proceed with the action until the default has been set aside. (See: MCR 3.210(B)(2)(c))
Setting aside a default – good cause.
- A party may request a court set to aside a default before entry of a Judgment by filing a verified (under oath) motion to set aside the default showing good cause. (See: MCR 3.210(B)(3))
- A party may request a court to set aside a default after entry of a Judgment must be conditioned only if the motion is filed within 21 days after the default judgment was entered and if good cause is shown. (See: MCR 3.210(B)(6)(a))
What is “good cause” to set aside a default?
The Michigan Court of Appeals addressed this question in the seminal cases of Koy v. Koy and Saffian v. Simmons:
“Good cause sufficient to warrant setting aside a default or a default judgment may be shown by (1) a substantial procedural defect or irregularity or (2) a reasonable excuse for the failure to comply with the requirements that created the default.”
Setting aside defaults is disfavored.
It is important to note that the law disfavors setting aside defaults and default judgments that have been properly entered underscoring the importance of having proper representation in every divorce, custody and family law case.
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I have been exclusively practicing divorce and family law in Michigan for over two decades. The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles. We are compassionate, creative and always prepared. We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.That is why we provide more free information on divorce and family law than any other Michigan law firm. We want to help you manage your situation. Allow our exceptional legal team to help you navigate the change in your life, without compromising principles.
By: Daniel Findling