After you have served the Petition, your spouse has 30 calendar days to “respond”. By respond, we mean filing a “Response” (FL-120). If the thirtieth day falls on a weekend or a holiday, your spouse has until the next business day to file.
If after the statutory time has lapsed and no Response has been filed, you can prepare a Request to Enter Default (Judicial Counsel Form FL-165). Defaults, and the required accompanying documents, do take a bit of time to prepare and if your spouse comes back a few days later and wants the default set aside, most Judges will usually grant that request, regardless of the reasoning for failing to file their Response. To potentially avoid having to prepare additional documents, and delay your action, unnecessarily, you may want to alert your spouse that you will file a default by a set date if they do not file their Response.
If you take your spouse’s default, they will not be required to prepare their disclosures so if you need their financial information to obtain orders for support or division of debts, the easiest, fastest, and cheapest way to get it is by them completing and serving their required disclosures.
If your spouse and you are participating in mediation and/or working together to try and come to a final agreement, you should first let your spouse know that you will be filing a default so that they may not have to file a Response, other documents and/or pay their filing fee.
If you decide that proceeding with a Request to Enter Default, is the best and appropriate action for your case, you will need to also prepare either an Income and Expense Declaration or a Financial Statement, and/or a Property Declaration for filing, depending on the relief requested in your Petition.
- If you asked for any monetary orders (i.e. child support, spousal support, attorney fees) you will need to file either the Income and Expense Declaration or the Financial Statement so that the Judge can assess your financial situation. This will also be required if you are asking for any division of debts. If you are not asking for any financial relief, you may not have to file this, but it is better to have it properly completed just in case it is requested by the Judge when you are ready to finalize your Judgment. One of these forms are required to be filed, regardless of whether you are proceeding by default, uncontested or contested.
- The Property Declaration is required any time there is any exchange of property requested, whether it is personal property (furniture, furnishings, appliances, vehicles, etc), real property, employment benefits, or business interests. Usually, this form is only filed in a default action and is not required to be filed with the Court if you are proceeding in an uncontested or contested action. In uncontested and contested actions, parties usually will only serve a Schedule of Assets and Debts as part of their disclosures.
Once you submit the Request to Enter Default the Court will either approve or deny your request. When you get an endorsed filed copy back, you will need to have a copy served on the other party. At this point you can begin to prepare your final Judgment packet (Step 3).