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Divorce and Proceeding by Default.

by | Mar 21, 2024 | Uncategorized

To initiate a divorce in California, typically one spouse will file a Summons and Petition with the Court and then will take that paperwork and have it served on the other spouse.  This paperwork places the other spouse on notice that they have 30 days to have a Response prepared and filed with the Court.  So, what happens when the responding spouse fails to timely file their Response with the Court?  In this week’s blog we explore the topic of defaults and more particularly, what happens in a normal default situation when the responding spouse simply ignores the requirement to respond, what happens when the couple agrees that a response will not be filed and a little bit on steps to take when a spouse mistakenly overlooks responding.  


Notification provided on Summons.  When the paperwork is served, the Summons notifies the receiving spouse that a case has been filed against them, they have 30 days to file a Response, and if they fail to do so the Court may make orders against them regarding their finances, their property and their children (if applicable).  Within that 30 day period that spouse must get their Response filed to assure that they have the opportunity to participate in the resolution of the proceeding and that they are given the opportunity to provide their side of the story.


What happens when the Response is not filedIf a Response is not filed in the allotted 30 days, the petitioning spouse has the option to request, through the submission of required paperwork to the Court, that they be given the opportunity to move forward with the case without the participation of the other spouse.  This is referred to as “proceeding by default”.


Not AutomaticOnce the 30 days has passed from when the Summons and Petition was served on the other spouse, the default does not automatically happen.  The petitioning spouse needs to file a Request to Enter Default and it is not until this form is processed by the Court that the default takes place.  Pending the submission of the default paperwork, the responding spouse will continue to have the ability to get their Response filed with the Court even after the applicable 30 days has passed.  The responding party should never leave it to chance and should assure their Response is timely filed, but the Court will accept a Response filing up until a default is entered.


Defaults without agreementSo what does the divorce process look like in the event that the responding party fails to file their Response?  When this takes place the petitioning spouse will file their request to have the default entered and will make a proposal to the Court setting forth what they believe to be a fair resolution of the issues.  The Petitioner is required to provide evidence to the Court supporting the proposed terms being sought and the Court will look to assure that it is consistent with the law.  A default does not mean that the petitioning spouse gets everything, but the other spouse is not given a chance to provide their own perspective.  While the Court will strive for fairness, the facts will have been presented in the light most favorable to the spouse presenting them to the Court. 


When the default paperwork is submitted to the Court the petitioning spouse will often include with the submission a draft of a proposed Judgment for the Court to consider and a declaration setting forth the basis for the proposed order.  If the facts are straightforward the Court may review the paperwork submitted and grant the Judgment without the need for a hearing.  If the Court has questions or disagrees with the proposed terms, a default hearing will be set at which time the Court will review the matter, consider the evidence, and make orders they deem fair.  In the end, the other spouse’s input is not part of the consideration.


Mediation and defaults with agreement.  A Response does not necessarily need to be filed to allow for the responding party to participate in the case.  Another way of proceeding with the Court is by submitting a default with an agreement.  


Let me step back for just a second.  When a Petition gets filed with the Court, the petitioning party is required to pay a filing fee which is currently $435.00.  When a Response is filed, the responding party is also required to pay their own $435.00.  There is an option that allows for a couple working together to resolve their divorce to avoid the payment of this second filing fee.  It is called proceeding by default with agreement.


At the commencement of the mediation process the couple can agree that while they are in mediation the responding spouse will not need to file their Response with the Court.  The couple agrees to this for so long as they are in the mediation process as if they are able to settle their case they can submit their agreement to the Court as a “default with agreement” and can avoid paying the second filing fee.  In this situation they will further agree that in the event mediation does not work, then they will confirm this in writing and the responding spouse will be given 30 days from the falling out date to get a Response filed with the Court.


When proceeding in this fashion it is important to memorialize the agreement not to proceed by default so there are no surprises.  On the default forms that will get filed with the mediated agreement, there are special boxes confirming that while a default is being requested, that all issues have been resolved through agreement.  The Court will review the terms, but unlike the default where the other spouse has not participated, the Court will usually ratify the agreed upon terms with less scrutiny.  


Undoing defaults The Court’s preference is to provide both spouses with the opportunity to participate in the divorce process.  With that said, they also don’t expect one spouse to have to wait too long for an unresponsive spouse.  There are some ways for a defaulted spouse to petition the Court to set aside a default judgment that has been taken against them  in their absence.  To do so they must provide an explanation for their failure to timely respond which must fit within the grounds upon which the Court has the authority to proceed with a set aside.  The various grounds for doing so are beyond the scope of this week’s topic.  A spouse seeking to set aside a default judgment can be held responsible for any associated attorney’s fees arising from the set aside, and there is no guarantee the request will be granted.  It is much better to timely respond to avoid the consequences of a default.


It is important to understand the responsibilities that arise when a divorce Petition has been filed and served.  The rights of the spouse who has been served lies in the balance.  It is essential that there either be clear agreement that a Response will not be required to be filed, or that the Response be timely filed to preserve the right to be a participant in the case.  Failing to comply with the Court’s stringent requirements can dramatically impact how each spouse is treated through the process.