After an original petition for divorce under article 103 has been filed, in some cases, the plaintiff can seek a default judgment. To get a default judgment, the plaintiff has to first get a preliminary default. Ordinarily, if the defendant fails to answer within the fifteen (15) days required by law, the plaintiff can seek a default judgment. In a divorce case, if the defendant signs a sworn affidavit acknowledging acceptance and waiver of service, a preliminary default judgment can be entered on the same day that the affidavit is filed.
Seeking Preliminary Default
After Using Ordinary Service
To get a default judgment, the plaintiff must first get a preliminary default. A preliminary default may be obtained by oral motion in open court or by written motion mailed to the Court. Either an oral or written motion will be entered in the minutes of the Court, but the preliminary default shall consist merely of an entry in the minutes. To get a preliminary default, file a Motion and Order for a Preliminary Default or make the motion orally in court.
Using an Affidavit of Acceptance and Waiver of Service
"When a defendant in an action for divorce under Civil Code Article 103(1), by sworn affidavit, acknowledges receipt of a certified copy of the petition and waives formal citation, service of process, all legal delays, notice of trial, and appearance at trial, a preliminary default may be entered against the defendant the day on which the affidavit is filed. The affidavit of the defendant may be prepared or notarized by any notary public." La. Code of Civil Proc. art. 1701 B. If you can get the defendant to accept service and sign the appropriate waiver, a preliminary default can be entered on the same day that the affidavit is filed.
Confirmation of Preliminary Default
After the entry of the preliminary default, the party seeking a default judgment must "confirm" the preliminary default.
When A Party Can Seek to Confirm a Preliminary Default
The appropriate time to seek to confirm a preliminary default depends on whether the defendant has "made an appearance" in the case.
If the Defendant Has Not Answered or Made an Appearance: Two Days
If no answer or other pleading is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the preliminary default. When the defendant has not made an appearance, a preliminary default can be confirmed two days after the entry of the preliminary default. Since the two-day time period is "exclusive of holidays," the two days must be non-legal holiday days. So, a preliminary default entered on a Friday can be confirmed on a Wednesday, assuming none of the weekdays were legal holidays.
If the Defendant Has Made an Appearance: At Least Seven Days
When a preliminary default has been entered against a party after having made an appearance of record in the case, a party seeking to confirm a preliminary default must first send the other party notice of the date of the entry of the preliminary default. The notice must be sent by certified mail by the party obtaining the preliminary default to counsel of record for the party in default, or if there is no counsel of record, to the party in default. The notice must be sent at least seven days, exclusive of holidays, before confirmation of the preliminary default. To get confirmation of the default, the party seeking to confirm the preliminary default must submit to the Court a copy of the certified mail receipt to show that the notice was sent to the party in default.
Proof Needed to Confirm a Preliminary Default
A preliminary default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to the entry of a final default judgment. Prima facie means "on its face," and describes evidence that would, without objection, prove the facts at issue in the case. For example, testimony from a spouse that the spouses have lived separate and apart for more than 365 days required to get a judgment of divorce.
The Court may permit documentary evidence to be filed in the record in any electronically stored format authorized by the local rules of the district court or approved by the clerk of the district court for receipt of evidence. Evidence to support the confirmation of a preliminary default can be filed by affidavit, video, or other format approved by the clerk of the district court. Check the local rules of the district court to learn what formats are accepted by that court.
When the demand is for divorce under Civil Code Article 103(1) or (5), a hearing in open court is not required unless the judge, in his discretion, directs that a hearing be held. The plaintiff shall submit to the court:
- an affidavit specifically attesting to and testifying as to the truth of all of the factual allegations contained in the petition,
- the original and not less than one copy of the proposed final judgment, and
- a certification which shall indicate:
a. the type of service made on the defendant,
b. the date of service,
c. the date a preliminary default was entered, and
d. a certification by the clerk that the record was examined by the clerk, including the date of the examination, and a statement that no answer or other pleading has been filed.
Contact the judge's clerk to find out whether the judge will require a hearing or whether the confirmation of preliminary default can be completed with the submission of an affidavit stating the facts listed above.