Monday, October 27, 2014

Divorce - Not Showing Up to Court in Massachusetts & Default Judgment

Time and time again I have divorce and family law clients ask me, “What if I don’t show up for court?”, “Do I have to go to court?”, or “Can you get me out of going to court?”. I suppose the reason why I get the question so often is because divorce and family issues can be very emotional and facing a soon to be ex-spouse can evoke serious feelings of dread.

There is generally one instance in which you would not have to go to court and it would not be detrimental to you. If you are out of state, or country, or on family emergency and it would cause you undue hardship to attend a hearing, and your attorney says he/she could conduct the hearing without you, then (in Massachusetts) he can file a Waiver of Appearance on your behalf. Once the judge approves, your attorney would essentially speak in your stead should the judge have any direct questions.

You do not have to go to court in every instance. For example, you do not have to show up every ‘hearing’ your attorney sets up on ‘temporary orders’ but you should really consult your attorney before you decide not to go. Most motions are supported by evidence and if your evidence is clear and in black & white, your testimony will not be needed. However, while your attorney knows most of your story, something may come up where you have the crucial detail that might win the motion. Still, if you do not want to show up you should ask your lawyer about each instance and do not decide that matter for yourself.

If you were served a subpoena, then yes, you must go to court. Not going to court in this instance may result in an arrest warrant being issued. Under certain circumstances, people still do not show up but are well advised to inform their attorney in advance and send a friend or family member to court to explain your emergency absence.

If you are scheduled for trial then you will need to be in court. You will be called as a witness and it is in your absolute best interest to be there so that your side is accurately submitted to the court. Missing your own trial would most likely result in a default judgment against you. This means that the judge will call to hear you, hear nothing, and side with the other party. The moving party will still need to show proper service and to prove the facts of their case (as they would in a motion) but there would be no counter argument which means most times, a win by default. Again, you are well advised to go to court if you have any hope in winning.

Before deciding which day you decide to go to court and which day you don’t, consult your attorney. There are always factors that you may not have thought of and it is usually in your best interest to go.

If you’re a Massachusetts local and in need of legal representation for divorce and family law matters, I would be very pleased to help. Please visit my website for my contact information.

Robert Finlay – Attorney at Law