Default divorce in California can be an easy option for couples seeking divorce where one spouse is unresponsive or refuses to agree to divorce terms. However, it is vital to understand the default divorce process and the potential risks regarding the divorce outcome.
This article explains everything you should know about getting a default divorce and what it means for both spouses.
Let’s dive right in.
A default divorce occurs when the petitioner (the filing spouse) receives no objections or involvement from the non-filing spouse. It could be because efforts to locate the other party have failed or because the respondent (also called “defendant”) ignored the divorce papers.
The petitioner can ask the California court for a default judgment of divorce if the other party does not file a response within 30 days after they receive copies of all default divorce paperwork.
In this case, the judge will only look through the information and requests from the petitioner.
If the requested terms comply with the law, the judge will issue a default judgment without hearing the respondent’s side.
A divorce by default can sometimes include an agreement between the spouses. The primary reason to file for divorce this way is to decrease divorce expenses. For example, when the respondent does not file response papers, they don’t have to pay the filing fee.
Another undeniable benefit of a default divorce with an agreement is that the court won’t object if you split your property unevenly. So, even if the agreement grants you more property than your spouse, the judge will still sign your divorce decree.
Getting a default divorce with an agreement consists of the following steps:
This type of default divorce is also called a true default divorce.
It means the respondent does not file a response and refuses to cooperate. In this case, the court will only review the petitioner’s proposed judgment and decide whether to grant a divorce by default on the requested terms.
One disadvantage of this default type is that the petitioner cannot split the property as they think is fair. Under California law, spouses’ community property must be divided equally (50/50).
The filing spouse must split everything down the middle if they want to get divorced by default.
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The state of California has several requirements for obtaining a default divorce. They include the residency requirements and a few waiting periods, described below.
A spouse can get a default divorce if the other party has not filed a Response after receiving copies of California divorce papers. California laws give the respondent 30 days to file their answer.
The 30 days start after the respondent receives copies of the petition, summons, and other divorce papers. After the end of this waiting period, the petitioner can request a default judgment.
A waiting period to obtain a default divorce in California consists of several parts. First, all spouses wishing to get a divorce in California must meet the residency requirements.
Under the law, at least one spouse must have lived six months in the state and three months in the county where they plan to file.
The second part of the mandatory waiting period is six months for all divorces. Like the 30 days given to the respondent to file the Response, these six months start when the non-filing party was served with the divorce papers.
To start and proceed with a default divorce in California, the spouses must complete the series of mandatory steps, including filing a set of divorce paperwork and complying with the deadlines.
Here are the main steps to get a default divorce in California.
Filing for default divorce starts the same as a regular divorce.
Notably, a petitioner needs the following forms to file for default divorce in California:
File the original and two copies of these papers with the proper county court clerk’s office and pay the filing fee ($435) unless you want to request a fee waiver. If requesting a fee waiver, add the form FW-001.
California family law requires the petitioner to notify the respondent about the divorce proceedings.
If you choose a personal service, you must find a person older than 18 years, hire a private process server or a deputy sheriff, and ask them to deliver the divorce papers to your spouse.
After that, the server must complete the Proof of Service form (FL-115). Then, file the original and a copy of this form with the court.
California divorce proceedings include a 30-day waiting period for a defendant to file a Response (FL-120) with the court. If they haven’t responded, the petitioner may file a request to enter default divorce.
However, before requesting a default divorce, they must share financial information with the other spouse.
The petitioner has 60 days from the filing date for divorce to complete and give the other party several financial forms with information about their property and debts.
These forms include:
After you share the financial information with your spouse, file the form FL-141 with the court.
To proceed with a default divorce in California, the petitioner must make sure that:
If all these requirements are met, the petitioner can complete and file the Request to Enter Default (FL-165). If the petitioner is proceeding with a true default, they must attach forms FL-150 and FL-160.
The petitioner must complete and file the rest of the forms containing final orders on divorce terms. The final default divorce forms in California are as follows:
If you have an agreement with your spouse, attach it to the final papers. Otherwise, fill the form FL-343 (Spousal, Partner, or Family Support Order Attachment) and FL-345 (Property Order Attachment to Judgment) with the proposed property and debt division.
If you have minor children, fill out the following forms:
When submitting the Judgment form and other final forms to the court clerk, bring two envelopes with postage, one with your address and another addressed to your spouse, so the court clerk can mail you copies of the judgment.
Most of the time, the judge won’t require the default divorce hearing and will review the paperwork and sign it if everything is in order.
However, the hearing might be necessary if the petitioner asks for spousal support or if the judge has questions regarding the papers and proposed divorce terms.
So, what happens after the entry of a default?
The spouses will receive a signed copy of a judgment and notice of entry with the exact date when their divorce becomes final.
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When one spouse enters a default against the other, it can sometimes become an unpleasant surprise for the non-filing party. For instance, there may have been a mistake, or the petitioner did it intentionally.
In this case, a responding spouse starts looking for a way to fix this situation.
But can a default divorce Judgment be reversed in this case?
There are a few ways.
If you need to reverse the default divorce process, you can do so in a specific time frame. You can file a motion to remove the default either before the judge has ruled on your divorce or within six months afterward.
However, you must have a valid reason. California laws provide the following grounds for relief:
Setting aside a divorce default judgment in California includes two steps.
First, complete and file a Request for Order (form FL-300). In the upper section where you specify the type of case, check the “Other” box and write “Set aside a default judgment.”
You’ll also need to explain the reason for your request (Facts to Support section on page 4). Use a Declaration form (MC-030) as an attachment to explain your reasons and indicate what law supports your situation).
The next step is to complete a proposed response to the divorce (Form FL-120) and file it with form FL-300 and any attachments. You must pay the filing fee of $60 for the motion and leave a $435 check covering the filing of your response form.
After the clerk stamps the papers and writes the hearing date, you must give one copy of the paperwork to the other party and file the proof of service form with the court.
Getting a default divorce in California is more manageable than litigating contested divorce issues in a trial. However, it doesn’t always suit all couples equally well.
Let’s consider the main pros and cons of default divorce in California.
Lower divorce expenses
A default divorce is less costly than a traditional divorce in California because the spouses don’t have to hire lawyers to represent them in court. The price of default divorce only consists of court fees, which can be waived in some cases.
Quick and simple to obtain
Most of the time, default divorces in California do not require any hearings. Instead, a judge reviews the divorce paperwork and issues a divorce judgment without the spouses’ presence.
Perfect for a missing or uncooperative spouse
A default divorce is the best option to divorce a spouse whose whereabouts are unknown or who doesn’t want to file the answer to divorce papers. In both cases, however, the petitioner must formally notify the respondent about the divorce proceedings.
It can be reversed
Default cases may not go through as planned. For instance, if the respondent presents a valid legal reason for not filing response papers within 30 days of being served, the judge may dismiss the default proceedings.
Higher risk of an unwanted outcome
The spouse giving up their right to participate in the divorce can sometimes face an unfavorable divorce outcome. The remedy for such a situation is to have a default divorce with a written agreement between the parties.
It can end up costing more
Not all default divorces are granted. For instance, a judge may not approve the terms proposed in a petition. In this case, the petitioner might have to file for another type of divorce and hire a lawyer, which will cost more than initially planned.
The cost of a default divorce depends on whether you hire a lawyer or other experts to help you through the divorce process. If we set the legal help aside, your initial expenses will include the court filing fees.
For example, in California, a spouse filing for a divorce must pay $435 to the court clerk.
The spouses who cannot afford the court fees can ask for a waiver if they can prove their financial inability to pay. The appropriate document to file the paperwork free of charge is a Request to Waive Court Fee (FW-001).
However, even if the judge grants your request, you may have to pay your fees later, for example, if your finances improve during the case.
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A default divorce is usually a less time-consuming way to end a marriage than other types, for instance, litigation. Overall, the default divorce in California can take six months at the minimum.
Most of the time, a person requesting a default will have to wait the mandatory 30 days. If the other spouse does not file a Response, the court will only review the terms requested by the petitioner. If all paperwork is in order, the judge will enter a default.
However, the official date of marriage dissolution cannot be before six months after the respondent was served with the divorce papers. You’ll find the exact date in the Notice of Entry of Judgment.
After the judge signs the final divorce decree (Judgment), the court clerk will mail the copies to the petitioner and respondent. The ex-spouses will also receive copies of the Notice of Entry stating the date their marriage officially ends.
A default divorce is one-sided since the respondent gave up their rights to contest a divorce by not filing the Response within the established time limits. However, you can reverse the default proceedings by filing a Request for Order (form FL-300) and your Response (FL-120).
