A lot of California divorces are uncontested. Both spouses acknowledge that the relationship is over and work together to decide key issues like child custody and support, property division, and alimony. Sometimes a divorce becomes contested when there’s a disagreement in any of these matters, but ultimately resolution can be achieved through negotiation or litigation.
When your spouse doesn’t respond to divorce papers after they’re served, things get a lot more complicated. Perhaps they don’t want the divorce and hope that their silence will hinder or prevent the process. Maybe they’re trying to evade responsibilities that come with divorce, such as child support and property division. In either case, will it hold up your divorce? What can you do?
At the Law Offices of Renkin & Associates, we have supported a lot of clients in this position. While stressful, we can assure you that it will not prevent your divorce from going through and can even cause future problems for your spouse. An experienced California divorce lawyer can guide you through the process of obtaining what’s known as a default divorce.
What is a True Default Divorce in California?
In this state, respondents have up to 30 days after the date of service to respond to a divorce petition unless they receive an extension. If they don’t acknowledge the papers, it won’t stall the case. Instead, the spouse who filed the petition will be granted what’s called a ‘true default divorce.’
California courts will acknowledge and approve a true default divorce if the following are all true:
- The spouse who received the divorce petition and summons fails to respond.
- More than 30 days have passed without a response.
- There is no written agreement outlining the terms of a divorce settlement.
- Your spouse is not an active duty military member
- You are only requesting those items listed on your FL-100 Petition.
When this happens, that spouse has given up their right to have a role in the outcome of the divorce case. You can go ahead with the marriage dissolution and, in most cases, get what you are seeking in the divorce petition without intervention from your non-responsive spouse.
How is Default Divorce Different From Uncontested Divorce?
An uncontested divorce occurs when both parties agree on the four main issues of potential dispute: child custody, child support, asset and debt division, and spousal support. Once you and your spouse have negotiated each area and reached an accord, all of these details go into your divorce settlement agreement. The judge reviews the terms and signs your judgment, usually without a hearing. The whole process is generally amicable and low-stress.
With a default divorce, there is often some degree of hostility or malice on the part of the spouse who is not responding to divorce papers. They may not have been properly served because they moved or changed jobs without telling you. Even if they were served, they try to make things difficult by refusing to cooperate. In some cases, illness or a break in communication may result in them being unaware of the divorce, but this is not the norm.
It should be noted that California has a type of default divorce where your spouse signs a divorce settlement agreement but doesn’t file a response to the petition. This is not the same as a ‘true’ default divorce. Instead, courts treat this type of case as an uncontested divorce.
What if My Spouse Evaded the Process Server?
In California, you may be able to get a default divorce even if your spouse was not personally served with a copy of the complaint. If it’s apparent that they are deliberately evading service of process, the court may allow you to use an alternate means of service, such as via certified mail or publication in a newspaper. If your spouse doesn’t respond, you can go ahead with the default divorce process, even if he or she never saw the letter or published notice. Your San Diego divorce lawyer can help you seek approval for alternate means of service.
How to Proceed With a Default Divorce
If your spouse is not responding to divorce papers, your California divorce lawyer can help you proceed with a default divorce. You should use the court’s judgment checklist available online but It starts by completing and filing several documents, including:
- Declaration of a Default Divorce
- Request to Enter a Default divorce
- Judgment Form
- Notice of Entry of Judgment Form
If you have no children and don’t require spousal support, you may be able to get a default divorce without going to court. If decisions need to be made regarding custody and support, you and your family law attorney will attend a default hearing where the court will make a ruling on these matters. You will also need to schedule a hearing if you are requesting:
- Supervised or no visitation
- A specific amount of spousal support, particularly with a marriage of longer duration
- Unequal division of property
If a default divorce has already begun, it is difficult for a defendant to regain their rights. Unless your spouse responds, your divorce will be granted as per your wishes since your spouse was not present to contest anything. Even if they claim they never received the petition or didn’t know you filed for divorce, it can be difficult to revoke the divorce once the courts have finalized it.
Advantages and Disadvantages of a Default Divorce
Like any other process, default divorce has its advantages and disadvantages, all of which should be considered before going this route.
On the plus side, you save time and money because there are no drawn-out negotiations or long trials over contested issues. You also won’t miss time at work to attend multiple court hearings.
However, there is always a risk that your spouse will regret their unwise decision to ignore the divorce papers or honestly find out that the default divorce occurred. Although there is no guarantee they will succeed, they may try to petition the court to set aside the judgment and rehear the case which is likely to be granted.
Even if too much time has passed for the default divorce to be set aside, some aspects can still be modified, such as child custody and support and spousal support. Always contact your San Diego divorce lawyer if your former spouse tries to challenge the divorce or its conditions after it has been issued.
Is Your Spouse Not Responding To Divorce Papers?
When you want to move on with your life, your spouse’s stubborn refusal to acknowledge divorce papers can be incredibly frustrating. Fortunately, there is still a way forward.
At the Law Offices of Renkin & Associates, we provide the legal representation you need to obtain a default divorce that lets you start over on solid ground legally and financially. Let us help you through this challenging time in your life, so you can embrace a better future. For more information about your rights during divorce or to schedule a consultation, please contact us.