Default Judgment in Virginia: How It Works & How to Set It Aside

When a plaintiff files a lawsuit in Virginia, the defendant is served with a complaint and given a specific period to respond. But what happens when a defendant simply fails to answer? The result can be a default — and ultimately a default judgment — that resolves the case entirely in the plaintiff’s favor without a trial on the merits. 

What Is a Default in Virginia Courts? 

In Virginia, a default occurs when a defendant who has been properly served with process fails to file a responsive pleading within the time permitted by law. In circuit court, a defendant generally has 21 days after service to file an answer or other responsive pleading. If no response is filed within that window, the plaintiff may ask the court to enter the defendant’s default. 

A default is not, by itself, a final resolution of the case. Rather, it establishes that the defendant has forfeited the right to contest the plaintiff’s factual allegations. In effect, the well-pleaded facts in the complaint are deemed admitted. 

How a Default Judgment Is Entered 

Once a default has been entered, the plaintiff may move for a default judgment. In cases involving a sum certain — meaning the amount owed is fixed and calculable — the court may enter judgment without a hearing. In cases where damages are unliquidated or must otherwise be proven, the court will typically hold an ex parte hearing at which the plaintiff presents evidence to establish the appropriate amount of recovery. 

Limits on the Court’s Discretion 

It is important to note that even in the default context, the court retains discretion. A default judgment cannot exceed the relief demanded in the complaint, and the court must be satisfied that proper service was effectuated and that the claims are legally sufficient. 

Setting Aside a Default Judgment in Virginia 

Virginia law recognizes that defaults sometimes occur for reasons beyond a defendant’s control, and courts have the authority to set aside a default judgment under certain circumstances. A defendant seeking relief must generally demonstrate one of the following: 

• Good cause or excusable neglect for the failure to respond — such as a serious illness, reliance on incorrect legal advice, or never having actually received the complaint 

• A meritorious defense to the underlying claims — meaning that if the case were heard on the merits, there is a viable basis for a different outcome 

• A timely motion to set aside — filed within a reasonable time and, in some instances, within specific statutory deadlines 

Courts weigh these factors together, balancing the strong preference for resolving cases on their merits against the need for finality and the prejudice that delay may cause the plaintiff. 

Why Responding Promptly Matters 

A default judgment can have serious and lasting consequences. Defendants who have been served with a lawsuit should respond promptly and within the prescribed deadlines. Those who have already had a default judgment entered against them should consult with experienced litigation counsel immediately to evaluate whether grounds exist to have the judgment set aside. 

If you have questions about default judgments in Virginia or need assistance responding to a pending lawsuit, our litigation team is here to help. Contact Binnall Law Group today.