setting aside clerks default

Setting Aside a Default in Florida

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.


Not a Win in Itself


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.


What If the Respondent in a Case Starts Participating?


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.


Rules for Setting Aside a Default


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:


Excusable Neglect: 

Attorney mistakes, bad judgment, and strategic errors do not qualify as excusable neglect.  Ignorance of the law and/or rules does not qualify as excusable neglect. But many situations do qualify.  Being in jail and not being able to respond qualifies. Misrouted mail may qualify. Driving an answer to the courthouse and breaking down on the way can qualify as excusable neglect.


Meritorious Defense:

In divorce and custody cases, this is a very easy standard to satisfy. All you need to have to show a meritorious defense is to show you have some fighting chance of “winning.” In divorce and custody actions the concept of “winning” is sometimes difficult to define. But it is pretty clear – every Respondent has the opportunity to win something. A “Meritorious Defense” is an easily provable standard.


Due Diligence:

This fact goes to the old saying: You snooze, you lose. In other words, if you know something must be fixed then do not sit around and wait to fix it. In the case of a Clerk’s Default, once you discover it – do not wait three weeks to file your Motion to Set Aside Default. Start fixing the problem the moment you find the problem and you will have fulfilled the requirement of “Due Diligence.”




A Clerk’s Default is a serious thing and should always be avoided if possible. If a Default goes unnoticed or unaddressed your case and defense could be headed for serious trouble. If you ignore the requirements for a Motion to Set Aside the Default you may be headed for disappointment. But a quick response, intelligently put together can go a long way to solving this potentially bad situation.  And a succussfully set-aside Clerk’s Default becomes meaningless and will not longer negatively affect the case. With that procedure out of the way you can move forward once again and fight your case on level ground.

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Ayo and Iken Attorneys Florida

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