In California, the divorce process begins when one spouse files and serves a petition to dissolve the marriage. When the non-filing spouse receives notice of the petition he or she is required to respond, typically by filing an answer within 30 days. If no response is forthcoming, the filing spouse can ask the court to decide the case without the other’s participation. This is called a divorce by “default”. In such a case the court makes the final decisions based on the information from the filing spouse, and what the law says, without hearing what the non-filing spouse has to say.
California courts follow a set procedure and timeline when handling default proceedings. Here’s what you need to know about divorce by default in California.
“True” Default Proceedings
For a California divorce case to be considered “true” default, a spouse must not file a response within 30 days of being served with the petition, and the couple does not have a written agreement in place dictating the terms of a divorce settlement. In that scenario, the non-filing spouse gives up his or her right to have any say in the divorce or legal separation.
In cases of a true default, the spouse who filed for divorce will need to complete forms including a request to enter default, as well as a declaration for default. Both a judgment form, and a notice of entry of judgment form, must also be completed. There may be additional forms to fill out as well, including forms asking for a custody order, child support, spousal support, and forms related to the division of community property.
The court will review the forms and will then move forward to dissolve the marriage. The spouse who did not respond to the divorce petition will lose the opportunity to make arguments related to custody, support, and how assets are divided.
Default By Agreement
A case can also be resolved by default if the individual receiving the divorce petition does not file a response, but the spouses are able to agree on the issues raised by the divorce. In a default with agreement, the non-filing spouse foregoes a response to the Petition and the parties submit a written marital settlement agreement for court approval. The agreement needs to state that both parties agree to end the marriage and the details of the agreement regarding child custody and visitation, child support, property division, and spousal support. The court then decides the case based on the agreement and the law.
Advantages and Disadvantages Of A Divorce By Default
A divorce by default can be beneficial because it frequently saves time and expense the parties would normally incur in full blown litigation. Conversely, neither party has the opportunity to examine the other spouses’ financial information or other records prior to the issuing of final orders in a default divorce. Nor is there an opportunity for the respondent to have legal counsel review any orders for fairness and clarity or to make sure they are in the respondent’s best interests. In addition, the defendant could ask the court to set aside the default divorce, bringing the case back to square one.
You should also be aware that a default doesn’t mean your divorce happens right away. Under California law, it takes at least 6 months from service of the petition for a divorce to finish.
Divorce by default serves an important and valuable purpose for California residents. It prevents one spouse from stalling the divorce process, and also makes securing a divorce judgment easy when the parties sign a Marital Settlement Agreement. The courts take default cases very seriously because once a divorce becomes final, the decided issues are set in stone, assuming a motion to set aside the judgment is not filed.
If you find yourself in need of divorce by default, you must be certain you have handled everything correctly and do everything precisely by the book. Lynx Legal Service has extensive expertise in this area, and can help prepare the necessary documents to get you through this process. Please contact us at 888-441-2355 or info@lynxlegal.com with any questions on the above or if you need assistance with a divorce by default.