Long Island Divorce & Family Law Firm Established in 1976

What Happens if Your Client Fails to Appear for Court?

In divorce cases pending in Supreme Court, litigants must be present for each and every court appearance, unless the court waives the litigants' appearance. There are several reasons why their appearance is required. Being in court allows the litigants to communicate with each other to assist in moving cases to settlement, enables the litigants to provide information to their attorneys and/or the court, and also assures that they are available for future appearances that are normally scheduled in court.

If your client fails to appear, the court has several remedies available. The most severe is to issue a bench warrant to have the Sheriff's office pick the litigant up, detain him until the court appearance and then produce him the morning/afternoon of the court appearance. This extreme step is not the norm, but it does happen in some cases, especially when the litigant has not been complying with court orders or directives. The other end of the spectrum is a simple warning from the court to the litigant=s counsel to have their client appear at the next court appearance.

Another option (in between these extremes) is to default the litigant and schedule an inquest. An inquest is a one sided trial where the non defaulting party has the opportunity to present evidence to the court and ask the court to rule on whatever issues are presented by the divorce case. Even though the defaulting party is unable to present evidence to defend him or herself at the inquest, the non defaulting party must still provide the Court with proof (documentary or testimonial) to support his/her requests made at the inquest.

If a litigant has defaulted, they may file a motion to vacate their default. In order to vacate your default, you must (1) provide the court with a reasonable excuse for your default, and (2) prove to the court that you have meritorious arguments to make against the relief that was granted because of your default. It is public policy to vacate defaults liberally and decide cases on the merits, but depending on the circumstances of individual cases, Judges do not always vacate defaults. Therefore, it is strongly recommended that when scheduled, one makes sure to appear for each and every court appearance and avoid negative consequences.

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