Default Divorce In California: What Is It?
A default divorce in California is a divorce in which the responding spouse does not respond to the filing of the petition for divorce, or does not appear in court, and as a result, the divorce is granted without opposition from the responding party. A responding spouse often does not respond or appear in court when he or she wishes to avoid the situation altogether, or is distracted from the situation by other issues, such as personal issues, alcohol and drug issues, mental health issues, or is not found because of other circumstances.
In a default divorce scenario in California, the divorce can be completed without the consent of the responding spouse. In other words, if a responding spouse does not respond or appear in court, the petitioner can still get the final divorce without ever having to obtain a signature or agreement from the responding spouse.
In California , if a divorce is completed "by default," the petitioner must still complete and file a Preliminary Declaration of Disclosure and a final Declaration of Disclosure, even if written discoveries are not served upon the respondent. Under the California Rule of Court rule 5.210 (d), a petitioner may seek a default, and to enter a default judgment, when the respondent:
In addition, in order to complete the divorce, the petitioner must also obtain service of process upon the responding spouse, either in the divorce filing documents or with a Request to Enter Default, and a notice of entry of judgment. Put simply, the petitioner must fully inform the responding spouse that a divorce is taking place, even if the responding spouse is not responding to the notification.
Grounds For A Default Divorce
Default divorce in California is granted when the non-responding spouse fails to file a formal response within 30 days of receiving a Notice and Acknowledgment of Receipt of Summons and Petition for Divorce or Legal Separation. Under California laws for divorce, you are eligible for a default divorce after the assigned window has passed. The legal grounds for obtaining this type of divorce are covered under the California Family Code 2120-2129. Under these codes, an automatic dissolution of your marriage will take place after you take the proper steps to obtain a default judgment under California law. You are not required to obtain the consent from the other party to move forward with the divorce process.
There are various reasons why someone going through a divorce may want to avoid an agreement for a no-fault divorce and instead file for a default divorce. Chiefly, the principal benefit for a default divorce without agreement is that the party filing for a divorce without agreement is given the chance to control the process – which can be especially useful where there is an uneven negotiation dynamic between parties. Filing for a default divorce is a relatively straightforward process that gives you the capability to circumvent negotiations with your spouse if an adversarial negotiation dynamic is present. This process gives you control over important issues that will be addressed, such as child custody and support, alimony payments, and property division. In most cases, the need to preserve any semblance of a relationship with your spousal partner becomes a secondary issue when you file for a divorce without agreement.
How To Get A Default Divorce Without Mutual Agreement
A default divorce occurs — essentially — when one party ignores the divorce proceedings entirely. The spouse who filed for divorce shows up for court, and obtains a default judgment against the non-responding spouse. In California, here is how to proceed with a default divorce when there is no agreement: In California, once a party is served with a Petition for Dissolution, that party has 30 days to respond. If the responding party fails to make an appearance in court or file an answer to the petition, the filing spouse can now proceed with a default judgment.
- The first step to obtaining a default divorce judgment requires the filing of form FL-165, Request to Enter Default. The filing spouse will actually choose one of three options: a default judgment, default judgment with a request to separate, or default judgment with a request to dissolve and terminate.
- There are three different forms to fill out in order to obtain a default judgment; FL-144 for spouses without children, FL-155 for spouses with children, and FL-160 for spouses who wish to default on both financial issues as well as marital status. Any one of these forms asks questions in relation to marital assets, debts, and child custody. Also, Florida law requires that the non-filing spouse receives a copy of the forms 15 days prior to the default hearing date.
- When all forms have been filled out correctly and submitted, the court will go on to enter a default into the system, and a default hearing is scheduled.
- At the default hearing, the filing spouse must personally appear before the judge and show proof that the default notice was properly served on the ex-spouse. Next, the filing spouse must submit evidence that it really is impossible to communicate with the other spouse in order to obtain the divorce.
- If the court believes that there is sufficient evidence to prove that the ex-spouse received the default notice and can’t be contacted, the divorce will then be granted. A summons for a default hearing is given to the ex-spouse by a California sheriff, or constable.
- A default judgment cannot be obtained – according to California law – until 31 days have passed since the ex-spouse has been served. The default judgment process can’t go forward until over a month has elapsed to allow for this time frame for the responding spouse to answer the petition for divorce. The one exception to this rule is if the responding spouse has signed a waiver, which is also known as a stipulation. In this case, a default judgment will be granted with two days’ notice of a default hearing.
Potential Issues And Considerations
When opting for a default divorce without mutual agreement, individuals may face several challenges and considerations. One important factor to consider is the ability to negotiate child custody and visitation rights. Without the other spouse’s participation, it can be difficult to reach a mutually acceptable agreement that benefits the children. A default divorce may leave these decisions in the hands of the court, which may not know enough about the family situation to make the best choice.
Another challenge to consider is the division of property and debts. Without a mutual agreement, the court will divide assets and liabilities according to state law and the information provided. This can lead to an inequitable distribution, with one party potentially receiving less than they would have in a negotiated agreement. It can also lead to disputes over the interpretation of any asset or debt-related clauses in the divorce decree, which can be subject to interpretation on appeal. Furthermore, one party may not be eligible to file for spousal support after the divorce if they did not participate in the mediation process. The court will not find the other spouse at fault for the lack of participation, and may deny the request based on the duration of the marriage and other relevant factors.
On an emotional level, pursuing a default divorce can be stressful and may have negative effects on health if the parties are still living together. It’s important to consider how working towards a mutual agreement can alleviate these stressors and lead to a more positive outcome for both parties. It may be necessary to seek the help of a mental health professional to deal with the emotional complexities involved in a contested divorce, and to move forward from the painful experience of a failed marriage.
In summary, while it is possible to pursue a default divorce without mutual agreement, there are important legal and emotional considerations to keep in mind. Working with an experienced attorney can help ensure that the process goes as smoothly as possible, and that the best possible outcome is achieved for both parties.
Consequences Of Obtaining A Default Judgment
When a party has defaults in a default divorce, a court will essentially force entry against the defaulted party. A default against someone means that they do not respond to the lawsuit against them within 30 days after it is served and filed. In a family law court in California, there are usually no fee waivers or defaults for fees against either party. That means if you get a default against someone, they will have to pay the filing fee to get into the lawsuit.
The first thing a default is going to affect, as to cause a problem, is property division . If there is community property that is to be divided in a divorce or legal separation, the default will be granted and the Court will divide the assets in whatever way they want and the defaulted party will lose whatever amount of assets that was at issue.
Child support can be affected by a default also. The Court will impose child support as it sees fit during the time before the default and the defaulting party will probably have to pay back support as well.
Spousal support can sometimes be affected by a default. The Court may impose support on someone who wouldn’t have otherwise gotten it.
What To Do If You Are Served With A Notice Of Default
If you (the spouse who failed to respond to the initial filing or the respondent spouse who did not agree) have received a default notice, and all of the other requirements are met, the court can issue a default in your absence. The results are similar to the default judgment ordered by the court for a player who does not show up for a game. The court can grant an ex parte decision outright, awarding the petitioner everything requested in the petition without any response, agreement, or presentation to the court. Just like a referee’s decision, the court’s is considered final and binding on both parties.
As with regular playing rules, there are rules of engagement in family law court, too. You can contest the default notice, and these are the bases on which to do so: The declaration is your response to the court encapsulated into one page (plus where you are serving and paying child and spousal support, and addresses health insurance issues). It is your opportunity to object to the court’s discretion to grant the requested relief. The "good cause" must address each of the five points above. Those are the only bases on which you can defeat a default and reverse the court’s nullification of your response to the petition.
Once you are permitted to appear, there are a few options for the referee to consider before making a ruling: It is important to know that the standard of proof for orders made pursuant to the last three options is preponderance of the evidence. That means "more likely than not" or "over 50 percent likelihood" that winning would be easier than the opposing party to prevail (see Burden of Proof).
During a contested case in family court, both sides could call witnesses, destroy the credibility of those witnesses on cross-examination, make objections, and establish whether that objection would be finally considered according to relevant law prior to a ruling. In a default, this is not an option. The judge, acting as the referee, can accept or deny evidence, but there is not cross-examination. In addition, the court will likely allow you to submit documentary evidence as well as testimony.
After all is said and done, the referee makes a decision, and you will be notified in writing. Once entered, the court’s decision will not usually be revisited even if it’s later deemed inequitable.
The Importance Of Legal Representation
lthough the procedures for a default divorce may seem relatively straightforward, the potential implications of defaulting without a divorce agreement between spouses requires that you seek legal advice. Divorce law operates under some complex principles, and another legal challenge could arise as a result of a default divorce.
The role of legal counsel is to strategically guide you through the process of dissolving your marriage , so that all of your interests and rights are protected. While the ability to proceed with a default divorce exists to help people avoid more expensive litigation, it does not mean the process is simple. You need a strong legal advocate to protect your interests from local courts or your former spouse. Even a simple divorce carries legal risks, and it is wise in all circumstances to seek advice before pursuing such a case in California.