Divorce, like marriage, requires two people. Or does it? Sometimes it may be difficult or impossible for both spouses to participate in the divorce proceeding. Sometimes one spouse may simply refuse to participate. Fortunately, California law allows for divorce by default.
When Both Parties Participate
In a typical divorce, one spouse takes the lead even if both parties want to end their marriage. For example, you may start the divorce case by filing the petition for divorce, then serving the petition and a summons on your spouse. He or she then files a response to the petition. Depending on the situation, you and your spouse may go through a discovery phase before negotiating a marital settlement. If the parties are unable to reach an agreement, their divorce is heard by a judge who makes decisions for them. The divorce will happen either through negotiation of a marital settlement agreement or by court order.
When Divorce by Default Is the Solution
The responding spouse must respond to the divorce petition in 30 days. If no response is filed, the divorce may be concluded in one of the following ways:
- A default or uncontested case. You and your spouse have reached a settlement agreement about ending the marriage. Final paperwork is filed and, if approved, you are legally divorced.
- A true default. You and your spouse have not reached an agreement. However, your marriage still ends, as soon as your paperwork is filed and approved. In a true default, the non-responding party generally has forfeited any right to dispute spousal support, child support, child custody, and property division.
Final Thoughts
Opting for a default divorce may open a Pandora’s box of problems. If you are thinking of ignoring a divorce petition and summons, don’t. Never give up your rights without seeking proper legal advice first.
On the other hand, maybe you initiated the divorce and your spouse has refused to respond to the divorce petition. In most cases, you can still finalize your divorce.
Divorces, whether contested or default, are complicated. For assistance, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.