In the movie Sweet Home Alabama, a newly engaged woman must travel to her hometown before she can get married — technically, she is still married to her ex because he refused to sign the divorce papers. While this scenario sets up a dramatic story, this movie could never play out in California. In California you can get a divorce even if one spouse refuses to cooperate and agree to the divorce. This process is called divorce by default.

Divorce by default serves an important and valuable purpose for California residents. It prevents one spouse from holding the marriage “captive” by stalling the divorce process. However, a divorce by default requires you to do everything precisely by the book. A People’s Choice can help prepare the necessary documents to get you through this process.

Read on to learn more about divorce by default.

What is a Default Divorce Judgment?

A default judgment is a binding judgment entered by the court in favor of one party — in the case of divorce, the party who wants to dissolve the marriage. This judgment occurs due to a lack of action or failure to take action by the other party in the case. The default judgment is usually in favor of the plaintiff or petitioner.

For a court to render a default judgment, the petitioning documents must set forth accurate, clear, and concise details of all issues. However, if the petitioning documents are deficient in this information, the court may reject the petitioner’s request for a default judgment, and require them to amend the forms and re-serve the respondent.

How to Get a California Default Divorce Judgment

The first step to obtaining a California default divorce judgment is filing the initiating petition paperwork to start the process. Then, this petition for divorce, legal separation, or annulment is filed with the court and issued a case number. All future documents filed in the divorce proceeding must refer to the assigned case number.

After filing their case, the petitioner must formally serve their spouse with the divorce, legal separation, or annulment paperwork. This starts the clock running and sets the timeline for submitting a default divorce judgment to the court.

The respondent has 30 days to file a response. During this time, the petitioner should comply with the mandatory disclosure requirements and serve their spouse with a preliminary declaration of disclosure, schedule of assets and debts, and income and expense declaration. This first preliminary disclosure is absolutely mandatory for the petitioner; however, the second and final disclosure requirements may be waived.

If the respondent fails to file a response on the 31st day, the petitioner may submit a request to enter default along with the other documentation and mandatory forms the court requires to enter a default divorce judgment.

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 the petitioner to serve the papers in a different way. For example, they may be able to serve by newspaper publication.

Once the petitioner has served their spouse, the respondent may choose not to reply or file a response to the petition. 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. They also lose the ability to participate in decisions about spousal support, child custody, and child support. The court refers to this process as 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 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.

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.

The court is more lenient in accepting what may appear to be an uneven division of assets and debts when a couple signs this type of agreement.

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 legal 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.

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.