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Uncontested Divorce Proceedings

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One properly served with a divorce complaint has a limited amount of time in which to file an answer or an answer and counterclaim. An answer contains denials and admissions which determine what issues are to be decided by the court. Failure to file a timely answer usually results in the matter being set for hearing as an uncontested divorce. That hearing often results in an order adopting all of the terms proposed by the complainant. Failure to file an answer does not, however, totally preclude one from participating in the proceedings and contesting the proposed terms.

In a recent Marion County, Ohio case known as McKenzie v McKenzie, wife's divorce complaint alleged grounds for divorce including incompatibility. Husband failed to file an answer, but did appear at the scheduled uncontested trial. The trial court precluded husband from testifying or cross examining witnesses. Wife was granted a divorce and her proposed terms, including denial of any parenting time by husband with the parties' child, were adopted by the court.

Husband asserted on appeal that his due process constitutional rights were violated when the trial court excluded him from participating in the proceedings. The appeals court agreed. Numerous previous cases considered the same issues raised by husband. Those cases consistently held that failure to file an answer denying alleged grounds for divorce was an admission of those grounds. While a divorce may be granted on grounds not denied, the absence of a timely answer does not preclude participation in the uncontested proceedings.

The Ohio Rules of Civil Procedure specifically provide that the provision for granting a default judgment for failure to file an answer in a civil case, does not apply to a complaint for divorce. A party must be given the opportunity to testify and cross examine witnesses when entering an appearance at an uncontested divorce hearing. As Mr. McKenzie's due process rights were violated, the matter was returned to the trial court for a full evidentiary hearing in which he could participate.



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