What is a Default Divorce in California?
In California, a spouse could receive a divorce decree without cooperation from their significant other. In some situations, it could even be accomplished without their knowledge.
A default divorce occurs when the non-filing spouse, called the “respondent,” fails to file a written response to the divorce petition filed by the “petitioner,” who is the person filing for a divorce. In other words, the California family law court will grant the divorce in their absence.
This often occurs after a spouse ignores the legal notices about their spouse seeking a divorce. It's common, and they will typically get the divorce granted anyway.
Other reasons for a default divorce occur when the non-filing spouse decides not to cooperate with the divorce or is unaware of it. Perhaps they refuse to sign the divorce paperwork or tell their spouse they won't grant a divorce. In California, the deadline for the non-filing spouse to respond to a divorce petition is thirty days from receipt.
After that time has passed, the petitioner can proceed with the divorce proceedings without any intervention from the respondent. Despite the cause for a default divorce, the family court will follow specific legal procedures when dealing with them.
This means it's possible to get a default divorce even if the petitioner doesn't “serve” the respondent with the petition. Perhaps the respondent is aware of being served and evades the process server to delay the divorce.
In that case, the family court judge could allow the petitioner to serve them using an alternate method, such as certified mail. Our California family law lawyers will examine this topic in more detail below.
What is the Default Divorce Process?
As noted, a divorce by default usually occurs when someone who files for divorce doesn't receive a response from the other spouse.
If the respondent receives the California divorce petition but intentionally fails to respond within 30 days, then the filing spouse can proceed with the divorce anyway.
Another process can serve any respondent who intentionally avoids personal service of the divorce petition so the petitioner can move forward with the divorce.
After the default divorce process is started, it becomes more difficult for a respondent.
If they still don't respond, the petitioner will receive the divorce decree as requested since there was no challenge.
In other words, once a default divorce is granted by the court, setting aside the judgment is nearly impossible.
After the family law court has finalized the divorce, the non-filing spouse can't rescind the divorce because they didn't respond, even if they did not receive the petition or even know their spouse filed for a divorce.
What Are the Advantages of a Default Divorce?
There are some clear advantages to getting a default divorce in California, such as:
- Saving the petitioner time and money;
- Petitioner does not have to provide financial information;
- Divorce process does not require taking time off from work;
- No contested hearings or lengthy and expensive trials;
However, while a default divorce is typically less expensive, some risks should be considered.
For example, there are divorce cases where a respondent legitimately didn't know anything about a default divorce. If it can be proven, they can ask the family court to set aside the default judgment and rehear the case.
Suppose a petitioner hires a lawyer to intentionally file the divorce petition that will ensure the respondent won't have an opportunity to know about it or respond.
In that case, the petitioner could find themselves in a problematic legal situation if the family court is aware of the unethical behavior.
A significant disadvantage of a default divorce is that neither spouse will get the opportunity to review the financial information of their significant other. Further, there is no chance for the respondent to have legal representation to examine the paperwork for equitable distribution of assets.
What If You Are Served with a Default Divorce?
Suppose you are served with a California divorce petition. In that case, you must respond within 30 days or risk forfeiting your legal rights and your spouse receiving everything they asked for in the divorce proceeding.
In other words, your lack of a response will make your spouse eligible for a default divorce.
This includes child custody and visitation, child support, spousal support, and property division. Thus, the best option is to answer a divorce petition as soon as possible.
Simply put, no response will make you lose any chance to have your position heard by the court and give all the legal rights to your spouse.
Thus, if you are served with a default divorce, you need to immediately retain an experienced family law lawyer if you want to ask the court to set aside the judgment.
Depending on the details, it might be possible to persuade the judge to reopen the case to hear arguments. It can't be overstated that if you are adequately served with a divorce petition, you must answer within 30 days.
Many respondents believe that if they don't reply to the divorce petition, they can delay or prevent the divorce from occurring. This is a myth. A lack of response means you will lose your legal rights.
If you received a default divorce, contact us immediately to examine whether we can start legal action that seeks to set aside the judgment. If it can't be set aside, some divorce orders, such as child custody, child visitation, child support, and spousal support, could be modified.
Do not take any chances by ignoring a divorce petition. It will not stop the divorce. It's much less expensive to deal with the primary divorce issues between spouses once the petition has been filed.
If you were given a divorce petition, please contact the Los Angeles family law lawyers at Furman & Zavatsky to ensure your legal rights are protected throughout the proceedings, negotiation, and marital settlement agreements. We offer a free case consultation to review the details and legal options.