When You Can Divorce by Default
In California, when one spouse files a divorce, he/she must serve a copy of the divorce petition on the other spouse. The petitioner (the person filing divorce) must personally serve their spouse (the respondent in the case.) If the Respondent does not want the divorce, they may try to hide and avoid service to prevent the divorce from moving forward. If this happens, the court may allow you to serve the papers in a different way. For example, you may be able to serve by newspaper publication.
Once you have served your spouse, they may choose not to reply or file a Response to the Petition. Fortunately, they only have 30 days in which to file a Response. After 30 days pass, a Petitioner can ask the court to enter a default against their spouse. When this happens, the other spouse loses the ability to participate in how the court divides community property and debts. The other spouse also loses the ability to participate in decisions about spousal support, child custody, and child support. Instead, the petitioning spouse, along with the court, will make those decisions. The court refers to this process a true default case.
The courts take true default cases very seriously because once a divorce becomes final, these issues are set in stone. If you find yourself in need of divorce by true default, you must be certain you have handled everything correctly. Keep in mind, however, that just because a spouse does not respond to a divorce petition, it doesn’t mean the petitioner gets everything they ask for. The court will make sure that the Judgment is fair for both parties, even if one party chooses not to participate. On occasion, some courts will set a court hearing in true default cases. If a court does not feel the orders are fair, the court will not approve the Judgment to make the divorce final. As a result, completing a true default divorce case can be tricky. A People’s Choice can help with this process to make sure things run smoothly from start to finish.
Default Divorce with Agreement
There is another way an individual can get a divorce by default in California, and that is when the parties are cooperating. The couple can sign a Marital Settlement Agreement which explains precisely how they want to divide their assets and debts. The agreement will also address support issues, custody, visitation, and other related matters.
When a couple signs a Marital Settlement Agreement, the court is more lenient in accepting what may appear to be an uneven division of assets and debts. The court recognizes that the parties signing the agreement are doing so with deliberate and clear understanding and intent. As a result, there are fewer reasons for a court to reject a Judgment with a signed Marital Settlement Agreement as with true default cases. It is usually the court’s intention to approve the wishes and agreement of the divorcing couple. In other words, it’s much easier to get a default divorce Judgment with a signed Marital Settlement Agreement.
When the Courts May Modify a Finalized Divorce
Even in divorce by default, there are occasions on which the court can modify its orders. For example, if there was an order for one party to pay spousal support, and that person has a change in financial circumstances, they may later ask the court to reduce that amount. Courts also consider child custody and support issues fully modifiable. Either spouse may file a motion to change the current orders for child custody and support.
As you can see, a divorce by default can be beneficial to the party filing for divorce. Since the default process means the other party opts out of input into the final terms, courts take this process very seriously. As a result, it is harder to get a true default Judgment of divorce. We encourage you to work with an experienced document preparer to make sure you handle your side of this process correctly.
How to Finalize Divorce When Your Spouse Does Not Respond
After filing for divorce, as mentioned above, you must wait for your spouse to file a response. If they do not file a response, and there is no Marital Settlement Agreement, you have a true default case and must file the following forms:
- Request to Enter Default (FL-165)
- Declaration for Default or Uncontested Dissolution or Legal Separation (FL-170)
- Judgment (FL-180)
- Notice of Entry of Judgment (FL-190)
If your divorce involves child custody orders, child support, spousal support, or division of community property, you must file additional forms. An experienced document preparer like A People’s Choice can guide you, or you can find the required forms here.
You must serve all forms filed on the non-filing spouse. Afterward, a judge will review the proposed terms of the divorce. If the proposed terms are fair and consistent with California law, the judge will sign the Judgment. You and your spouse will receive the Judgment in the mail. Be sure to check for a termination date of the marriage. This date indicates the point at which your divorce will be finalized even if your spouse never responded. More importantly, that is the date when both parties will return to single status. In most cases, the termination date will be six months and one day after the date of service of the Petition. Remember, this is the minimum waiting period for a divorce in California.
An Important Word of Warning
Do not file a divorce where you deliberately make it so your spouse will not get notice. The court may set aside the divorce judgment and may order you to pay sanctions. Divorce by default is a powerful tool available to divorcing California residents whose spouses will not respond to the divorce petition. Equally, it makes getting a divorce Judgment simply and easy when the parties sign a Marital Settlement Agreement. Either way, be sure you are using the default process correctly and effectively by working with an expert resource like A People’s Choice throughout the process. Contact us for more information about how to obtain a default divorce judgment in California. Call us today at 805-648-5540.
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