By Attorney Howard Iken: If a lawsuit is filed and served by process server on an individual or entity, the Defendant or Respondent must file an answer within 20 days. This is a universal rule in Florida and it applies to divorce, paternity, personal injury, or contract cases. No matter what the type of case the person being sued must respond by the deadline date. The 20 days is calendar days – not weekdays. The deadline is very important and cases can be won and lost based on the deadline.
There is no automatic penalty that springs into existence on day 21. There is not even a penalty automatically applied on day 100, even if the Respondent has not made any attempt to file an answer. It is the responsibility of the Petitioner to assert their rights if the answer becomes overdue. On the 21st day, if no one has filed an answer to the petition, the Petitioner may file with the court a document called a Motion for Clerk’s Default. That motion triggers a process that ends with the Clerk of Court entering a Default against the Respondent.
A Clerk’s Default in itself is not a win. A Default simply allows the case to proceed forward without the participation of the Respondent. Before the Clerk of Court entered a Default, the case was in limbo. After the Clerk of Court enters a Default, the case can proceed forward. If the Respondent continues to ignore the case and does not file any court documents, the case can proceed to a Final Default Hearing. At that hearing the judge can decide all issues even though one side has chosen not to participate. The situation is usually a bad thing for the Respondent, and a really good thing for the Petitioner.
So what happens if the Respondent starts filing court paperwork only after the Clerk of Court enters a Default? Theoretically that paperwork has no meaning because the default prevents it from having any effect. If the Respondent wants to recover from this situation, they must file a Motion to Set Aside Default and hold a hearing on that Motion. Most of the time a Motion to Set Aside Default is successful. But a Default can have severe consequences and it is essential to file a proper Motion and see it through with a hearing.
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A common summary of the rules for setting aside (excusing) a default is frequently quoted by Florida appellate courts:
A party attempting to set aside a clerk’s default must demonstrate excusable neglect, a meritorious defense, and due diligence in order for the trial court to vacate the default.
That means a well-crafted Motion to Set Aside a Clerk’s Default must cover all the listed issues in a way that convinces the judge the Default should be vacated (voided). A definition of each required point:
