If your spouse refuses to take part in the divorce process, you may feel stuck. However, your spouse cannot prevent a divorce by refusing to participate. Instead, the spouse who files for divorce can seek a default judgment, a ruling a court makes when one party to a lawsuit fails to participate. When it comes to divorce, you can typically request a default judgment if your spouse fails to respond within 30 days after you serve them divorce papers.

Default judgment in divorce works differently from default judgments in other types of legal cases. In a default divorce in California, the judge will still follow California law concerning property division, spousal support, child custody, and child support. Yet, the spouse who files is the only spouse who offers evidence, meaning they control the narrative.

If you have questions about your options if your spouse has not responded to your divorce filing or wonder about seeking a default divorce, contact the Stratte Firm. We have years of experience helping clients through complex family law issues.

The Default Divorce Timeline

After a spouse files for divorce, officially called “dissolution of marriage” under California law,  they become the petitioner, while the other spouse is the respondent. The petitioner spouse must next serve the respondent spouse with divorce papers. California Family Code (“FAM”) § 2020 requires the respondent to file a response or waive that right within 30 days of being served.

Regardless of whether both spouses participate in the case, the court, under FAM § 2339, cannot officially divorce the couple for six months. Specifically, the court can divorce the couple after the earlier of six months after the petitioner spouse serves the respondent spouse or the respondent spouse makes an appearance in court, meaning they file documents in the case or attend a hearing in person.

What Makes a Default Judgment in a Divorce Unique?

In a typical legal case, a default judgment means the plaintiff “wins.” Unless the plaintiff has little to no evidence to support their case, the court can order a default judgment against the defendant after the defendant fails to respond. The order often includes monetary damages or requires the other party to start or stop doing something.

This result occurs because most legal claims involve one party (plaintiff) asserting that another (defendant) did something that caused them harm and that harm violated one or more (non-criminal) laws. By failing to respond, the defendant, in practical terms, concedes the correctness of the plaintiff’s claims. The defendant gives up their right to make a case against the plaintiff.

Default divorce works differently. Specific laws guide how divorce must work, and a spouse who fails to respond does not give up their property or child custody-related rights by failing to do so.

Divorce Grounds

California is a true no-fault divorce state. While every state offers no-fault divorce, California and several other states take this further by not offering fault-based grounds to file for divorce.

When you file for divorce in California, FAM § 2310 gives you two options to explain why you need a divorce: you and your spouse have “irreconcilable differences” or one of you is permanently legally incapacitated. In other words, you cannot blame your spouse for the divorce in legal paperwork. In short, the divorce process is not designed to have a winner or a loser.

Guiding Law

Every California divorce is guided by California’s Family Code. Divorce involving minor children must:

  • Divide community property equally, under FAM § 2550;
  • Establish child support consistent with California law; and
  • Set child custody arrangements that are in the best interests of the child.

Couples without minor children must still divide community property, defined by FAM § 760 as most assets either spouse acquired during the marriage. Courts need not divide what FAM § 770 defines as separate property, such as assets obtained:

  • Before marriage or after separation,
  • Through gifts or inheritances, and
  • Rent or profit from separate property.

Debts are treated similarly. FAM § 2621 and § 2622 recognize that couples may have both community and separate debts.

If the petitioner spouse requests spousal support, they must prove it is justified. When evaluating whether to order spousal support, courts consider the factors outlined in FAM § 4320, such as:

  • How long the couple had been married;
  • Each spouse’s earning capacity;
  • Whether one spouse supported the other to be able to increase their earning capacity, such as an advanced degree or license;
  • The ability of the spouses to pay support; and
  • The marital standard of living.

Generally, courts order spousal support only for as long as necessary for the requesting spouse to become financially self-supporting. The courts usually estimate that self-sufficiency should take half as long as the couple was married.

How Do You Get a Divorce by Default?

If 30 days have passed since you served your spouse and they have not responded, you can request a default judgment. To get your divorce by default, you have to file specific documents in addition to the typical divorce paperwork. Depending on your requests, you may also need to attend a court hearing.

Filing Requirements

Before a court can grant a default judgment, the petitioner spouse has to provide details showing that they clearly notified the respondent spouse about the divorce and gave them an opportunity to respond. Several California code sections, FAM §§ 2335.5, 2336, 2338.5, outline the process.

When they make the default divorce request, the petitioner also has to provide additional paperwork, including:

  • An estimate of the respondent’s monthly income, if known;
  • The value of community assets and debts;
  • A stamped envelope addressed to the defaulting spouse with the court’s address as the return address; and
  • A stamped envelope addressed to the defaulting spouse’s attorney, if they have one, with the court’s address as the return address.

If the couple has minor children, the filing spouse must also propose a custody arrangement and parenting schedule.

 

Default Prove Up Hearing

The petitioner spouse may not have to attend a court hearing to get a default judgment. However, the court may require the petitioner to participate in a hearing if:

  • They request spousal support,
  • Property and debts between spouses are particularly complex, or
  • The proposed custody and parenting plan is not in the child’s best interests.

At a default prove up hearing, the petitioner presents evidence to the judge, usually documentary evidence such as financial statements and testimony, to support the requested orders.

Impacts of Seeking a Default Judgment in a Divorce

In a default divorce, the petitioner spouse gets to control the process much more than in a divorce where both spouses participate. The petitioner spouse may, for example:

  • Decide which spouse keeps specific assets;
  • Make judgments about what property is separate or community; or
  • Propose a custody schedule without input from the other parent.

The other spouse’s lack of participation means the parties cannot reach a mutual agreement that may work better for them than what the court mandates. The default judgment is equally legally binding on both spouses, even if one completely fails to participate.

What Happens After You Get a Default Judgment?

After you receive a court order granting you a divorce by default, you are no longer married. You and your former spouse must follow the terms of the order.

One exception can delay the final dissolution order; if your spouse suddenly decides to respond, under FAM § 2341, they can request the court reopen the divorce case or appeal the court’s order. Yet, they can typically only do so if they show good cause for not responding earlier, such as not receiving proper notice due to no fault of their own.

Getting a Default Divorce in California

A spouse refusing to participate in the divorce process cannot prevent divorce, but can complicate it. The filing spouse has to take extra steps to show that they properly notified the other spouse and that the other spouse had the opportunity to respond to the divorce papers. If the filer takes all the necessary steps, they can request a default judgment, enabling the court to grant the divorce despite the other spouse’s lack of participation.

Obtaining a default divorce can be complicated and confusing. At the Stratte Law Firm, we partner with you to navigate the process in a way that keeps you in control with strategies tailored to your goals. If you have questions or need help with a default divorce, the Stratte Firm can help.

Resources:

  • Community property, California Family Code § 760, link.
  • Separate property, California Family Code § 770, link.
  • Marriage dissolution process, California Family Code § 2020, link.
  • Grounds for divorce or separation, California Family Code § 2310, link.
  • Default judgment procedure, California Family Code § 2335.5, link.
  • Additional proof for default divorce, California Family Code § 2336, link.
  • Default divorce procedural requirements, California Family Code §  2338.5, link.
  • Six-month waiting period, California Family Code § 2339, link.
  • Division of debts, California Family Code § 2621, link.
  • Characterization of debts, California Family Code § 2622, link.
  • Spousal support factors, California Family Code § 4320, link.