What is a Divorce by Default in California?

• Divorce terms to know
• What is a true default divorce?
• What is a prove-up hearing?
• How to file for a default divorce
• What is Default with Agreement?
• References

As if "divorce by default" isn't obscure enough, there are actually two types, and one is very different from the other. Both types refer to a divorce where one party filed a Petition for Dissolution of Marriage (FL-100) and the other did not formally Respond (i.e., file a Response, FL-120). However, a "true default" is much more complicated than an "uncontested divorce."

Divorce terms to know

These are common phrases used in a California divorce that might be unfamiliar to you:

•   Petition for Dissolution of Marriage (FL-100): This form starts the divorce process. One person fills it out and takes it to a courthouse to file it.
•   Response – Marriage/Domestic Partnership (FL-120): This form allows the party served with the FL-100 form to respond to the divorce. You could use this form to do things like request alternate child custody agreements or alter proposed spousal support payments.
•   Default divorce (or “true default”): One person never responded to the FL-100 form or otherwise participated in the divorce process. The case moves forward with input from the original filing person only.
•   Default with agreement: One person doesn’t fill out the FL-120 form. However, both parties collaborate on their post-divorce arrangements. No one loses their rights in this process.
•   Default hearing: A default hearing or prove-up hearing is required when the courts need more information to make decisions about parts of your divorce.

What is a true default divorce?

If a Response has not been filed to the Petition for Divorce, the Petitioner (the spouse who filed for divorce) can move forward with the divorce by filing a request for default with the court. The effect of the default is that the spouse who did not file a Response gives up their right to have any say in their divorce.

The rights you could give up by not filing a response include the following:

• The right to negotiate child custody arrangements
• The right to specify child support payments
• The right to obtain (or avoid paying) spousal support payments
• The right to avoid paying attorney’s fees

Concurrently or right after filing a Request for Default, the Petitioner can prepare a (proposed) judgment for the judge to review and (hopefully) sign.

The court treats this type of divorce much differently than others because the Respondent is not participating in the divorce at all.

What is a prove-up hearing?

In some cases, the judge will require the filing of additional forms or a "prove-up hearing" to clarify information or answer questions.

You should review all of your documents before the hearing and bring them with you to the courtroom. The judge may ask you questions about specific parts of the forms or why you answered questions the way you did.

Entering a courtroom can be intimidating, but do your best to stay calm and professional. Don’t speak unless you’re spoken to, and never interrupt the judge.

At the end of a prove-up hearing, the judge will sign your final documents. Take them to the clerk in the courthouse and file them.

How to file for a default divorce

Your partner’s response determines whether your divorce will follow a true default path. However, you must follow California laws closely to make sure you’ve done everything possible to make your split as quick and effective as possible.

The following steps are required:

•   Fill out forms. Fill out the Petition – Marriage/Domestic Partnership (FL-100) form and the Summons Family Law (FL-110) form.
•   File your forms. Take the documents to the courthouse in your county and pay a filing fee between $435 and $435. You may have local forms to fill out, too.
•   Serve your spouse. Ask an adult not connected to your case to deliver your forms to your spouse, along with a blank Marriage/Domestic Partnership (FL-120) form. When the papers are delivered, ask your server to fill out and file a Proof of Service Summons (FL-115) form.
•   Share financial paperwork. Fill out the Declaration of Disclosure (FL-140), Income and Expense Declaration (FL-150), and Schedule of Assets and Debts (FL-142) forms. Have someone mail these documents to your spouse. Fill out a Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration (FL-141) with the court.
•   Wait 30 days. Your spouse has 30 days from the moment your original documents were filed to respond. You can’t do anything during this time but wait.
•   Fill out final documents. Fill out the Request to Enter Default (FL-165), Property Declaration (FL-160), Income and Expense Declaration (FL-150), Declaration for Default or Uncontested Dissolution or Legal Separation (FL-170), Judgment (FL-180), and Notice of Entry of Judgment (FL-190) forms. File them with the court.
•   Ask for orders. If you need the courts to decide crucial details, you’ll need to fill out and file more forms. These include the Spousal, Partner, or Family Support Order Attachment (FL-343), Spousal or Partner Support Declaration Attachment (FL-157), Earning Assignment Order for Spousal or Partner Support (FL-435), and Property Order Attachment to Judgment (FL-345) forms.
•   Wait for information. In some cases, the court will approve your paperwork as it was submitted. In others, you’ll go to a hearing to answer questions. The clerk will tell you which is right for your case.

What is Default with Agreement, uncontested divorce, or amicable divorce?

This type of divorce is typically what Hello Divorce users choose when filing for divorce. Like a "true default," the Respondent does not file a Response. But in this scenario, your ex still signs the divorce agreement. 

If you and your spouse have a complete agreement or are working toward one, this is a great way to cut costs and time. And because your spouse is "participating" by signing the agreement at the end of the divorce, the judge won't scrutinize it as much. 

This table can help you understand the differences between these types of divorces:

Whether you are ready to DIY your divorce with our form-generating software or prefer to have an account coordinator to do it for you, we have your back.

References