Whenever you sue someone in a California Civil Court, the party you sue must respond to your demands within a certain amount of time, or risk the court’s power to simply abide by those demands without that person.
It doesn’t matter if you’re in Yolo County, Sacramento County, or Placer County. After a certain amount of time, the sued party defaults on the civil action if that person waits too long to respond.
In this way, divorce is no different. Once an individual is served with the petition for dissolution, legal separation or nullity, he or she has 30 days to respond. After that time has expired, the spouse who asked for the divorce can request the clerk of the court to enter the non-responding spouse’s default.
This does not mean your divorce is final. At this point, it means only that the other spouse can no longer respond to your petition. You still must submit judgment documents to the judge in order to obtain a final judgment on the divorce. You must also still wait the statutorily required six-months-plus-one-day period from the time of service before the divorce is final.
However, in cases where the other spouse is being less than cooperative, a default divorce can save a lot of time, money and hassle. For example, if the other spouse responded to your petition, then you would have to each exchange preliminary declarations of disclosure about your income, expenses and property. Your divorce would be stymied until you did.
Under a default, however, only you must serve your disclosures. You have the power in a default to waive receipt of the other spouse’s disclosures.
Defaults, when you can get them, make the entire process smoother. So how do you get one?
The first part of the process is not up to you. In other words, you have to wait the 30 days for the other spouse to not respond. If that spouse does respond, then a default is out of the question.
Second, you must serve on the other spouse your preliminary declarations of disclosure. This includes an Income and Expense Declaration (FL-150) and either a Property Declaration (FL-160), or a Schedule of Assets and Debts (FL-142).
You can serve your disclosures with your initial petition for divorce just to get it out of the way. You should try to do it either before or at the time the 30 day window has expired for the other spouse to respond. That way, you can march down to the court on day 31 and request your default.
The form to request a default is called the Request to Enter Default (FL-165). You must include with the document a postage-paid envelope addressed to the other spouse. The clerk will use this envelope to send a copy to that spouse.
So long as you meet the requirements for a default, the clerk will stamp it and give you an endorsed copy. You are not divorced at this point and no final judgment has been entered. Instead, you must provide the court judgment documents, telling the court how you would like it to rule. You can either do this at a hearing before a judge, or drop off the documents with the court with a postage-paid envelope for returning the documents to you.
Oftentimes, a default divorce proceeding will be completed long before the six-month-plus-one-day statutory period for waiting has ended. In those cases, the judge will stamp on the judgment documents that the divorce will be final on the earliest, legally possible day – six months and a day from the time of service. Then you will be divorced.
A Default Divorce is not always an option. But given the right circumstances, it can make your life a lot simpler.
Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.
Rate this Post
Loading...