What Is A Default Divorce?

There are many ways to resolve a divorce case in California. You can reach an agreement with your spouse on your own, or you can employ a family law mediator or attorney to negotiate the matter out of court. When a case involves complex matters or the two spouses are combative, the matter may have to go to court. A default divorce occurs when one spouse files the necessary paperwork with the court, serves the other party with that filed paperwork, but the other party does not respond.

A person may fail to respond to the divorce papers for many reasons. Regardless of the reason, though, it is important to know about the potential benefits, and drawbacks, of a default divorce.

Why Do People Fail to File a Divorce Response?

Default divorces are more common than people think because there are many reasons people fail to file a response to divorce complaints. Some do not answer the original complaint because they want to drag out the divorce process and make it more difficult. Others simply hope that if they do not respond, the case cannot proceed, which is not true.

Sometimes, people simply get busy and legitimately forget to file their response. In California, defendants have only 30 days from the day they are served with divorce papers. That is not a lot of time and as life continues on, divorce papers become forgotten in some cases. For the purpose of this article, be aware that the person who files the initial divorce paperwork is the Petitioner and the person would need to respond is the Respondent.

Advantages and Pitfalls of a Default Divorce

The biggest drawback of a default divorce is that the Respondent is prevented from appearing in the mater and fighting for their rights in court or during negotiations. Generally, in Santa Clara County, after a Respondent files the appropriate response with the court, they are able to file motions to ask for certain relief or engage in settlement discussions with the Petitioner.  However, if the Respondent does not file their response with the court after 30 days of being served, the Petitioner can file a Request to Enter Default with the court. Once that default is granted, absent a court order setting aside the Default (which would be another article for discussion and won’t be discussed here).

Once the Default is granted, the Petitioner will be able to set a hearing or file a proposed Judgment requesting a judgment be entered by the Court without the Respondent’s involvement. This could essentially mean they can ask for whatever they want.

Still, there are some advantages to default divorces for the Petitioner. Without the need to go to court, there are no lengthy trials or contentious court hearings. The spouse who filed for divorce also will not need to produce extra information about their finances because nothing is being contested in the case. Again, they essentially can ask the court whatever they want. The court sometimes will ask questions and clarifications before making orders to ensure it is an equitable result when possible.

What to Do if Served with a Default Divorce

It is always recommended that you answer the divorce petition within 30 days so you can have a say in child support, child custody, and property division hearings. If you miss this deadline and are served with a default divorce, there are still steps you can take.

You may be able to ask the court to set aside a default divorce and to rehear the case. If too much time has passed for this to be a possibility, you can still petition the court to modify certain orders so they are more favorable to you.

Our Divorce Lawyers in Campbell Can Help with Your Modification

If you have been served with a default divorce, our Campbell divorce lawyers at Hepner & Pagan, LLP can help you petition the court for a modification or to rehear the case. We will also work tirelessly so you obtain the fair settlement you are entitled to. Call us now at 408-688-9153 or contact us online to schedule a consultation.