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True Default Divorce

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Divorce by Default

What is a default divorce?  Put very simply, a default divorce is one in which the other party does not file their Response and you are allowed to finish your divorce alone, without the other party’s involvement.  What does that mean?  It means that the other party is cut out of the divorce process and the Judge should not hear any arguments from your spouse when the Court makes a Judgment in your case.

After you have filed your initial divorce paperwork, including your Summons, Petition for Dissolution of Marriage, and any other required documents for your particular divorce, you have to have someone else serve that paperwork on your spouse.  That means someone other than you must actually hand a filed copy of that paperwork to your spouse.  Next, that person must sign a form called a Proof of Service, listing all of the divorce paperwork that was served on your spouse, when and where they were served and then that form must be filed with the Court. 

After that Proof of Service is filed with the court, you must wait 30 days to see if the other side files their Response.  (That is the “answer” to your Petition)  If after 30 days your spouse does NOT file a Response, then you can take their “default” which basically kicks them out of the case.  You need to file what is known as a Request to Enter Default with the Court along with certain other paperwork and if you have done everything right, the court will enter a default against your spouse.  

You MUST also prepare and serve what is known as Preliminary Declarations of Disclosure.  These are required financial documents and you cannot get divorced in California without properly completing your Preliminary Declarations of Disclosure and filing a proof of service with the court.  Then, you may prepare and try to file your proposed Judgment.  A Judgment is how you end a divorce case.  If you try to submit your judgment without first completing your Preliminary Declarations of Disclosure, the Court will automatically reject your proposed Judgment.

The Court may then require you to go in front of a judge for a short hearing called a “prove-up” hearing.  This is where the judge will ask you questions to prove why the Court should make your proposed Judgment the way you have prepared it.  The Court will most definitely call you in if you have children and are seeking child support.  However, on some occasions, if your judgment is in perfect order, the Court may simply sign your proposed Judgment and mail it to you and your spouse, ending your divorce.  All of this is what is known as a “True Default.”

 

DEFAULT WITH AGREEMENT

However, just because you have “defaulted” your spouse, that does not mean that you and your spouse cannot agree to the terms in your judgment.  This is called a “Default with Agreement.”  However, you should be aware that by signing the judgment, the other party will ALSO be forced to pay a Response filing fee of $435 (or the cost of the filing fee, should it go up).

Once you and your spouse have come to an agreement about the proposed Judgment and what it states, both of you will sign it.  Make sure that your spouse’s signature is notarized.  A notary is an official who can witness the signing of documents and certify that those signatures are authentic. 

You will then file your agreed-upon or “stipulated” Judgment with the Court along with your Request to Enter Default form and certain other necessary forms.  Again, make sure that you have previously completed your Preliminary Declarations of Disclosure or they will automatically reject your judgment packet.  The Court will review the stipulated Judgment and send you a notice in the mail that they either approve the judgment by signing it, reject it by sending it back to you with the reasons listed for the rejection, or set a hearing for you to come in for a default prove-up hearing as we described above.

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