The process of getting a divorce is rarely viewed as a solo endeavor. A majority of the time, spouses take an active role in resolving their shared conflicts. However, this isn't always the case. A "default divorce" occurs when one spouse does not participate in the divorce process and the court proceeds without them. When this occurs, the petitioner receives all of the remedies that were requested in the initial complaint.
In this article, we'll take a look at some important facts concerning default divorce in California, such as when it occurs and why you should try to avoid one, as well as what our team of professionals at the Los Angeles Divorce Lawyer can do to assist you.
California Default Judgments
Default judgments result in default divorces. But what exactly is a default judgment? To "default" means the same thing in this context as it does in the "real" world; it means failing to meet a commitment. As a result, a default judgment happens when one party refuses to take part in or reply to court proceedings.
In the context of a divorce proceeding, this default typically happens when the defendant does not answer or acknowledge a court complaint within the specified period. That period in California is thirty days.
This lack of response can be highly difficult for the petitioner—the person who initiated the divorce—especially if it comes as a surprise. Fortunately, though, California won't force you to remain married only because your partner refuses to participate. The petitioning party can go ahead with the divorce proceedings without involving the silent defendant if they were served with the legal documents but knowingly failed to respond within the allotted time.
Even when the petitioner fails to physically present the defendant with an official copy of the divorce papers, it is still possible to obtain a default divorce.
A judge could allow the petitioning party to call on the other party in another manner if the respondent deliberately avoids the summoner in the hopes that doing so will cause the divorce to be delayed. For instance, the judge can let the petitioner publish the divorce notification in a local paper or send it via certified mail. When the other party still fails to respond, the divorce will proceed by default, regardless of whether or not they saw the notice.
It's challenging for the defendant to recover their rights after the default divorce has begun. If the opposing party does not act, the court grants the petitioner the divorce they seek regardless of whether or not the defendant has shown up to oppose the divorce. When a divorce has been finalized, it cannot be undone, irrespective of whether the one party was unaware of the divorce proceeding or did not receive the petition.
What a Default Divorce Does
If a defendant does not respond to either reject or accept the conditions of the initial divorce complaint, the court has the discretion to award a default ruling. In essence, a default divorce ruling grants the petitioner everything they demanded in their initial divorce case, ending the marriage.
However, if you are a respondent to the claims, then this essentially implies that you simply allow your former partner to make all of the decisions regarding how to split your life. Additionally, you no longer have the option to appeal or otherwise have your opinion heard.
How to Obtain a California Default Divorce
The submission of the necessary documents to initiate the divorce proceeding is the very first thing that has to be done to acquire a default judgment in California. When an annulment, legal separation, or divorce petition is submitted to the court, it is assigned a case number. The issued case number has to be used in all subsequent documents submitted in the course of the divorce proceedings.
When seeking a legal separation, annulment, or divorce, the petitioning party must officially serve the respondent with the necessary documentation. By doing so, you get the clock ticking and establish the deadline for filing a default judgment with the court.
The responding party has a thirty-day window to submit a response once the applicant serves the paperwork. The petitioner must follow the necessary disclosure guidelines during the period and present the other party with an initial disclosure declaration, debts and assets schedule, and expense and income statement.
Petitioners are required to provide this initial, mandatory disclosure, but they can opt out of submitting any subsequent and third, optional disclosures.
When the respondent does not submit a response within 31 days, the petitioner could ask the judge to issue a default divorce ruling by submitting a petition to go into default in addition to the necessary paperwork to the court.
California Default Divorce Hearings
In most cases, spouses can simply file for default divorce without a court hearing. However, there are times when courts decline to execute a default judgment because of the paperwork that was presented. You might need to request an official hearing with the court if this happens.
Additionally, the court could conclude that the starting petition was inadequate and failed to include substantial factual and supplementary material to result in the default judgment. When this happens, the judge can request that the petitioner revise and re-submit the request to the responding party with additional information.
Remember that a hearing is always necessary for an annulment. Consequently, the judge will not issue a default judgment unless both parties have appeared in court to present their cases.
Why Do Spouses Default in Divorce Proceedings?
Default divorces, as a phrase used within the law, were never meant to be utilized on purpose by a married couple. Rather, they first served as a backup plan; something to fall back on should one partner refuse to participate. But it quickly evolved into something else. In the present day, people who get divorced by default typically fall into one of three primary groups. These categories are as follows:
- The unreachable partner.
- The purposeful partner.
- The evading partner.
Let us examine each of the above in further detail and explain why you should steer clear of all three.
The Unreachable Party
This category includes spouses who are unreachable or untraceable. They will sometimes leave town without providing a current address of where they moved to. These spouses often include those who have been estranged from one another for a long time without communicating.
Before a judge hands down a default verdict in these kinds of circumstances, they will assume that you will have made a fairly major attempt, in good faith, to track down the respondent. On the other hand, if they really can't be reached at any point, the divorce is going to be finalized without them.
The Evading Party
The second category of defaulting partners includes individuals who purposefully avoid legal action. These people purposefully avoid all attempts at providing good service and fail to engage when they are, whether it's because they just do not want to leave the marriage or they simply wish to be stubborn.
Sadly for these people, evasive strategies will not delay the divorce process nor will they stop it from occurring. As a result, they will lose their rights and have no control over issues like property distribution, custody of children, or spousal maintenance. And their actions will simply aggravate the judge.
The Purposeful Spouse
Partners who fit into this class are, like those in the second, deliberately defaulting. For these individuals, it's a deliberate legal strategy rather than a complex game evading the proceedings.
In this scenario, the petitioning party isn't shocked or even surprised when the respondent misses the deadline for their response; rather, they anticipated that it would happen.
This is because both of them had planned the entire process, including who was going to file for the divorce first, the party that was going to default, as well as the wording of their petition, before the petitioning partner ever submitted the necessary paperwork to initiate the divorce.
It is clear that the parties here are seeking the simplest, least expensive, and least time-consuming possible divorce in the state, and they have chosen to go through the default divorce procedure to achieve this goal.
The Risks of Divorce by Default
Any time someone is accused of a crime in the US, they have a constitutional right to a court hearing under the principle of due process. This entails being entitled to representation by legal counsel and to present your case in court.
However, there is a caveat: if you fail to utilize these privileges, they will be lost. If rights were prolonged, the court will surely violate the legal entitlements of the side that was being litigated against. This is why, whenever a party defaults, they are not only accepting everything the opposing party says but also waiving their rights to legal due process.
You are therefore no longer able to:
- Dispute any statement made in the initial divorce complaint.
- Participate in pivotal decisions on child custody.
- Change your opinion on a subject in the divorce.
- Counter the claims that are being made.
- Contest the judge's ruling.
- Take part in the proceedings in whatever way.
Additionally, it will be far more difficult to change the final decision in the future (for example, if you subsequently decide to change your decree). Therefore, even though couples are in agreement, it is usually preferable to aim for mediation or uncontested divorce.
Reversing a Default Divorce Judgment
So, your partner has successfully obtained a default judgment through a motion filed with the court. But now that you think about it, perhaps you became aware of your mistake, and you have a change of heart. Or perhaps you didn't notice there was a problem until it became too late. Now that this has happened are you trapped with the default divorce, or are you able to change it?
Default judgments are serious matters, and they are considerably more so when it comes to overturning one. Here, you're essentially asking the judge to restore rights to the due process you've just thrown away, and you're further requesting them to revisit matters of law that have been settled.
If a divorce decision is overturned after the fact, it could cause major problems for the petitioning party who relied on it to resolve crucial issues arising after the divorce. Because of this, the court can only reverse the decision in certain situations, specifically when failure to take appropriate action was caused by:
Excusable Neglect
This happens when an unforeseen circumstance catches you off guard or when you make an honest error.
Improper Service
This happens when divorce papers were either incorrectly served, incomplete, or neglected.
Fraud
The other party's deception, perjury, duress, or absence of compliance with the law led to the default ruling.
As can be seen, "purposefully initiating a default ruling to get a simple and quick divorce" is not a valid excuse under California law for vacating a judgment. Because there are so many crucial rights at stake, it is often far better to think about uncontested divorce or mediation.
How to File a Motion to Change or Modify a Divorce Judgment
The process of filing a petition to change a default judgment in divorces is both simpler and more cost-effective than appealing the decision. It's important to remember that a motion can only change certain parts of a divorce ruling. Typically, matters involving minors can be altered after a verdict has been rendered. In addition, the court cannot amend a verdict unless there has been a substantial change in the situation.
For instance, if there has been a significant shift in the child's living situation that necessitates the modification of the kid's custody agreement, the judge presiding over the case would likely examine the circumstances to determine what is going to be in the best interests of the child given the new conditions. The alterations of spousal and child support are two more problems that are frequently addressed after a judgment has been handed down.
The judge will often ask about the party's intentions if an appeal to amend a judgment is filed within six months of the entry of the divorce judgment. You must submit a Request for Order if you want to change a divorce verdict. These amendment motions can be submitted without engaging an attorney rather easily.
However, we do advise hiring a knowledgeable legal document assistant (LDA) who has experience with these procedures.
Appealing a Divorce Judgment
The procedure of changing a divorce ruling through an appeal is substantially more challenging. To succeed on appeal, the party appealing must first persuade the judge that a substantial mistake happened during the trial.
Additionally, the mistake must be supported by either fact or law. The opposing side must be notified of this appeal by the party attempting to challenge the verdict. When submitting the appeal, the moving side is required to follow specific timeframes and processes.
The moving side needs to prepare an appeal record. The appeals record will include both the transcript from the court's reporter as well as the clerk's records. Having a court-appointed reporter present at the trial is crucial for recording all of the testimony and judgments made during the proceedings. All documents submitted to the courts by both sides will be included in the clerk's file.
Finally, both sides must submit appellate briefs and present oral remarks to the judge. The court of appeals will consider the briefs, oral arguments, as well as any other relevant documents before rendering a decision. The court has the option of upholding the lower court's ruling, sending the matter back for a fresh trial, or modifying the lower court's verdict.
Hiring a lawyer experienced in appeal laws will be necessary if you are considering appealing a divorce ruling. We advise against attempting to handle this by yourself.
The Advantages and Disadvantages of a Default Divorce
It could appear like the easiest way for proceeding with a divorce when your partner ignores your first request, but before making any decisions, you need to weigh the advantages and disadvantages of this option.
One advantage of divorce by default is the fact that the person petitioning saves money on legal bills and court expenses since the responding party is not present to challenge the divorce decree or its conditions.
There won't be any need to submit financial documents or provide additional details that a conventional divorce demands, so the divorce procedure should go quite smoothly. The applicant can consequently save both money and time.
However, if the defending spouse objects to the divorce proceeding, the procedure could become more contentious. You can run into problems later on, for instance, if you choose an unscrupulous divorce attorney who purposefully files this petition so that the other party would never receive it.
The defendant may also be unaware of their legal options. The defendant can then move the court to nullify the default divorce, sending you right back to where you began.
Find a Divorce Attorney Near Me
Getting a California default divorce is something that should virtually never be done on purpose since doing so requires waiving a significant number of rights to critical due process procedures. If you're looking to end your marriage quickly and affordably, you can hire a skilled divorce attorney to assist you in finding a different course of action that suits your situation.
You can contact the Los Angeles Divorce Lawyer if you have any inquiries regarding default divorce including other divorce alternatives. Call us at 310-695-5212.
