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Divorce by Default

In California, if one party wants to get divorced, the other party can delay and complicate the divorce, but it is almost impossible to stop the divorce.  To begin a divorce, one party needs to file the initial paperworkwith the court and serve the other party. That person filing the initial paperwork is called the Petitioner because they are filing a petition for dissolution, or divorce.  Then normally, the other party would file their Response and serve the Petitioner party.  That party becomes the respondent, because they are filing a Response.  But, in some divorces, the responding party simply ignores the case and refuses to file a Response.  In this kind of situation, you do not need to wait forever for the respondent to join the case.


What you can do is this; after you have filed for your divorce and served to the other party, you must wait at least 30 days from the date they were served to allow the other party to file their Response.  If they do not file their Response within that 30 day period, the Petitioner can file a request for default.  When that default is granted, the respondent is deemed to have been defaulted.  This allows the Petitioner to move forward in the case without the respondent being involved.


After the petitioner has taken the respondent’s default, the petitioner can make a request for a “prove-up” hearing, which is like a mini trial, but at this trial, the petitioner is the only one to speak. In fact, you don’t even have to give notice of this hearing date to the defaulted respondent.


One very important thing should be noted here, obviously if you are the only ones speaking at a trial, you are likely to win whatever you are asking for. However, you should know that even if the respondent has been defaulted, and even if they are not present for the prove-up hearing, the court still has a duty to divide community property and community debt equally.  So, if you are going in for a prove-up hearing, make sure you are prepared with respect to an equal property and debt division.  This is not necessarily true with regard to children. If you are at a prove-up hearing, and the other party is not present, you are likely to get virtually any orders regarding custody and visitation that you request.

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