What Is a Default Divorce?

In California, a spouse can receive a declaration of divorce without needing the cooperation – or even the knowledge – of the other spouse in certain situations. A default divorce is one in which the courts pass judgment on the divorce after the respondent fails to respond. In other words, if a spouse ignores notices regarding a desired divorce, that spouse could find him/herself divorced anyway. Get the facts on default divorces in California to find out if this process is right for you.

Details of a Default Divorce in California

A divorce by default occurs when the person who files for divorce does not receive a timely response from the other spouse. If the defendant received the papers yet intentionally fails to issue a response within the deadline (30 days from receiving the petition in California), the petitioning spouse may proceed with the divorce without intervention from the silent defendant. In California, it is even possible to get a default divorce if a petitioner does not personally serve the defendant a copy of the complaint.

If the defendant intentionally evades the process server, thinking this will delay the divorce, a judge may permit the petitioner to summon the defendant in a different way. For example, a judge may allow the petitioner to post the divorce notice in the newspaper or through certified mail. If the defendant still does not respond, the default divorce process will begin – even if the defendant never saw the publication.

Once a default divorce is underway, it’s difficult for a defendant to regain his or her rights. If the defendant continues to not respond, the petitioner will receive the divorce decree according to his or her wishes, since the defendant was not around to contest anything. You can’t take back or rescind the divorce once the courts have finalized it, even if the defendant never received the petition and did not know a spouse filed for divorce.

Pros and Cons of a Default Divorce

Going through with your divorce after your spouse fails to respond to your initial request may seem like the simplest way out but consider the pros and cons of this route before finalizing anything. One of the advantages of a default divorce is that the petitioner saves money on legal fees and court costs, because the respondent is not around to contest the divorce or any of its terms. The divorce process will go generally smoothly, with no need to produce financial information or disclose other information that a typical divorce requires. Thus, the petitioner can save time and money.

On the other hand, a default divorce process could carry some risk if the defendant spouse takes issue with the process. For example, if you work with a dishonest divorce lawyer who intentionally files the petition in a way that ensures the respondent will never see it, you could find yourself in trouble down the road. The defendant may not fully realize his or her rights during a default divorce. The defendant could then ask the court to set aside the default divorce, bringing you back to square one.

What Happens if Your Spouse Serves You a Default Divorce?

It is generally in your best interests to answer a petition for divorce as soon as possible. Otherwise, you could end up missing the deadline and making your spouse eligible for a default divorce. Being on the other end of a default divorce means forfeiting all your rights in the divorce proceeding.

You will not have the opportunity to make your voice heard during property division, child custody, child support, or spousal support agreements. Instead, all the power will be in your spouse’s hands (as well as those of the court). Unless you’re ready to give up these rights, act to petition the courts to throw out the default immediately. Act fast if you plan to ask the courts to set aside a default divorce in California.