Divorce by Default
California Divorce

Divorce by Default

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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.

Legal Separation

Pros and Cons of Default Judgment in Divorce

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When a relationship does not stand the test of time, the people who once were a couple need to become individuals again. In California, this can sometimes be accomplished through the use of a default judgment for divorce. In a default judgment, one partner completes paperwork to have the court enter a divorce judgment and the other individual does not contest the divorce. In this type of default, the parties agree on the settlement provisions. As a result, the court is able to simply enter a default judgment.

A default judgment is sometimes the simplest and easiest method of having a divorce completed. It is usually less costly than litigation. However, there are both pros and cons to this method of ending a marriage.

Sometimes the people who are divorcing decide that having a default judgment is the method they want to use for divorcing, so they agree beforehand on how they want the divorce to be structured and bring that in for the entry of judgment. This allows them to have the ease of a default judgment and still ensure that their collective property is separated in the method they prefer.

However, there are many potential cons in using a default judgment in a divorce case, and using this method is not always appropriate. A default judgment should not be used if the parties are not in agreement about the distribution of the marital estate, if there is a situation of abuse of one partner by the other, or if the parties do not have a full understanding of the legal implications of the divorce. It is important for both parties to also understand that the party who is not initiating the divorce, also known as the respondent, is giving up his or her right to contest the court’s decision if no response is made.

Perhaps most important, however, is that failing to obtain the advice of an experienced California divorce attorney can result in giving up rights that a spouse may not even know he or she has, all in the name of “getting along.”

If you want to learn more about whether a default divorce might compromise your future, or that of your children, contact the attorneys at the Law Offices of Judy L. Burger. We can help. Call us today to make an appointment: (415) 293-8314.
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Help! Can I Still Get a Divorce if My Spouse Doesn’t Respond.

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Help! Can I Still Get a Divorce if My Spouse Doesn't Respond?
Sometimes only one person in a marriage wants a divorce. The other spouse may threaten to put up roadblocks such as not answering the petition for divorce. Can your spouse really prevent the divorce by failing to respond? Fear not. Your spouse’s lack of participation in the proceedings will not prevent you from getting a divorce.

In California, you begin the process to end your marriage by filing in superior court a petition for divorce (form FL-100) and a summons (form FL-110), along with other documents. After you have filed these documents, you must have a copy of each served on your spouse. This is called service of process, and it is done by having someone personally deliver the documents to a spouse living in California or by mailing the documents certified mail to a spouse residing out-of-state. The person or service that delivered, or served, the documents on your spouse files proof of service in the court.

The summons informs your spouse that he or she has 30 days to respond to the petition for divorce. The 30-day time period begins to run on the day your spouse is served with the petition and summons. Your spouse can respond by agreeing to the requests in your petition or by opposing your requests. But how do you move forward with the divorce if your spouse does not respond at all?

Although your spouse has 30 days to respond to the petition for divorce, you are not automatically divorced once that time period has passed without a response. The earliest your divorce could be final is six months from the date the petition for divorce was served, but you may still move your case forward during the six-month waiting period. After the 30-day response period has run, and if you and your spouse do not have a written agreement, you may ask the court to enter a default judgment called a “true default.”

To obtain a true default judgment, you need to file the original and two copies of the following forms:

  • a Request to Enter Default (Form FL-165);
  • a Declaration for Default or Uncontested Dissolution or Legal Separation (Form FL-170);
  • a Judgment (Form FL-180); and
  • a Notice of Entry of Judgment (Form FL-190).

Additional forms may be required as well, such as the additional forms required if you are asking for custody, child support, spousal support, or partner support. Each county may require its own forms also.

Once you have filed these forms, the clerk of court will mail a copy to you and to your spouse. If your spouse does not oppose default or respond to the court in any way, the court will enter a default judgment. In the case of a true default, the court will grant the requests in your petition, but the court does not grant the divorce until at least six months have passed since you served your petition for divorce.

At a later date, your spouse may try to oppose the entry of default judgment by arguing surprise, mistake, or excusable neglect. In such a case, you may be required to appear in court for a hearing. After hearing arguments on both sides, the court will either grant default judgment or deny the same, but at least your case is proceeding.

Obtaining a “true default” defeats an opposing spouse’s attempt to stop or slow down the divorce, but it also has some downsides. In a case with a true default, you must also file a property declaration, which is a public record, and the court must divide property equally between the parties.

If your spouse is attempting to thwart your divorce by not responding to the summons, consult a qualified family law options to discuss your best options. The attorneys at the Law Offices of Judy L. Burger are experienced in difficult divorce proceedings and what it takes to sort out complexities when your spouse fails to respond. Call today to see how we can help you: (415) 293-8314.