What if My Wife Defaults in a Divorce in California?

By Teo Spengler

It takes two to tango, but only one to divorce in California. A spouse properly served with divorce papers cannot prevent the dissolution of the marriage by refusing to respond. In fact, your spouse's failure to file a responsive pleading allows you to file for a judgment based on your papers only, termed a default judgment. You must use the appropriate forms and follow the mandated procedures to request a default divorce.

Serving Divorce Papers

A spouse initiates a divorce action in California by filing a petition for divorce. The petition -- form FL-100 -- sets out the basic facts about your marriage and outlines the relief you seek. The summons -- form FL-110 -- advises your spouse that she has 30 days after the petition and summons are served on her to file a response. The summons also states that if no response is filed, the court can make orders affecting the marriage, dividing property and awarding custody of the children. You should file your disclosure papers giving your asset and income information at the same time as the petition since they must also be served on your spouse.

Service

After the forms are filed with the court, you must arrange for someone over the age of 18 to personally hand the papers to your wife if she lives in California. You can ask a friend or family member or hire a professional process server. If your spouse lives outside of California, you can generally serve by certified mail. The person serving the papers must fill out and file with the court a proof of service describing exactly how the spouse was served.

Divorce is never easy, but we can help. Learn More

Failure to Respond

The 30-day period for your spouse to respond begins the day the process server hands her the documents. Your spouse now has several options. She can file a response -- form FL-120 -- and oppose your requests; file a response and agree to your requests; or fail to respond at all. Sometimes a couple can come to an agreement on divorce issues before the 30-day period passes. If a spouse fails to respond to the divorce petition because she is relying on this written agreement, the default is only a technical one since she participated in the binding agreement. A true default occurs when a spouse declines to participate at all in the divorce issues.

Request for Default Judgment

You are not automatically divorced at the end of the 30-day response period even if your spouse does not respond. You must fill out and file with the court a request to enter default -- form FL-165, a declaration in support -- form FL 170, a proposed judgment -- form FL 180 and a proposed notice of entry of judgment -- form 190. In some counties you must also file forms revealing your property ownership and finances. If you request more than a simple dissolution of marriage, you must fill out additional forms. For example, you need to submit forms to seek custody, child support, spousal support or property division, as well as any forms required by local rules in your jurisdiction.

Entry of Default Judgment

Once you file the original and copies of these papers with the court clerk, he mails one copy to you and one to your spouse. She may appear in court and seek relief from a default judgment under section 473 of the California Code of Civil Procedure. Surprise, mistake and excusable neglect are statutory grounds for not answering the petition in a timely manner. If your spouse does not make a motion to avoid default, or loses that motion, the court will award judgment in your favor by granting your requests as set out in the petition if you filed the appropriate documents. Sometimes courts ask that you appear for a hearing where you must prove to the court's satisfaction the matters set forth in your papers. Once the court rules, the clerk will send you a Judgment and Notice of Entry of Judgment. Under California law, a divorce judgment cannot be entered until six months after the petition for divorce was filed.

Divorce is never easy, but we can help. Learn More
Can You Just Not Do Anything in a Divorce if You Are the Respondent?
 

References

Resources

Related articles

Default Judgments in Kansas in a Divorce

By the time you get ready to file for divorce, you and your spouse may not be getting along well enough to cooperate during the divorce proceeding. Your spouse may decide to ignore the divorce paperwork you filed, thinking that will stop the divorce or make you angry. Unfortunately for your spouse, Kansas courts can grant default judgments in divorce cases, giving you a divorce even when your spouse does not want to participate in the process.

Can the Respondent Finalize a Divorce if the Petitioner Won't Sign?

Sometimes a spouse files for divorce only to find out that the process is not going exactly the way she anticipated. She might realize that a court isn’t likely to grant her everything she asked for in her petition, or that you won’t agree to everything she wants in a marital settlement agreement. However, once the proceedings are under way, there’s only so much she can do to stall them. This is true even if she was the one who filed for divorce first.

The Response to a Petition for Dissolution

Getting served with a petition for dissolution or divorce is unnerving at best, even if you're expecting it. You may have less than a month to react and file a response with the court – usually about 20 days. If you do nothing, your spouse will probably be able to end your marriage by default. This means she'll get much – if not all – of what she asked the court for in her petition.

Get Divorced Online

Related articles

Do-it-Yourself Divorce Documents for Michigan

Like other states, Michigan allows divorcing couples to file their own paperwork with the court without the assistance ...

Divorce by Default

A divorce by default is one of the simplest ways to divorce. It generally occurs when one spouse doesn’t answer a ...

Can You Stop the Divorce Process in California After the Waiting Period?

California law mandates that the divorce process take at least six months, and this waiting period does not begin until ...

How to Stop Divorce Proceedings in California in the First 30 Days

Married couples often reconcile their differences once a divorce has been filed. To stop the divorce process within the ...

Browse by category
Ready to Begin? GET STARTED