Divorce by Default: What Happens When One Party Doesn’t Respond

It takes two people to get married, but while not favored and only where necessary, one person may pursue divorce alone. Under California law, no one can bar a person from ending their marriage, including their spouse. As long as one member of the couple wants the marriage to end, the courts will support this decision under the state’s no-fault divorce laws, so long as the requisites steps are taken. This type of divorce is commonly referred to as a “true default.”

State laws are structured to be as fair as possible to both spouses during divorce. The standard process assumes both people will participate in the process and will be proactive in assisting the Court to achieve the required equitable divorce for both parties. However, some spouses may be unwilling to divorce for many reasons and may therefore refuse to engage in the process. Others may have simply disappeared for mental health reasons or be otherwise completely unreachable. 

If you are concerned your spouse may prevent you from getting a divorce for any reason, take heart. California legislators recognized this risk, and statutes are available to ensure one spouse’s refusal or inability to participate will not prevent you from ending your marriage. In such instances, you may be granted divorce by default. 

What Is a Default in Divorce?

Default divorces occur when one spouse files a petition for dissolution of marriage, and the other never participates by either filing a response or otherwise engaging in the process. There are two kinds of defaults available in California divorces. The first, “default with agreement,” occurs when spouses reach an agreement to resolve any disputed issues at the time of divorce. 

True default is more complex because when one party is not participating, the Court needs to ensure all appropriate protections are in place so that the Court is compliant with its obligations to ensure equity. When you file a divorce petition, you must have your spouse served with the same paperwork submitted to the court. This allows them to review your claims, determine if they disagree with anything you requested, find legal representation, and then become participants in this process, by filing a response, among other things. 

However, California has a strict time limit for filing a formal response. Unless you agree to an alternate deadline, your spouse has 30 days from the day they were officially served with your Petition to submit their response to the Court. You may request a default judgment if the deadline has passed. 

If your spouse fails to respond to your petition in time, it may be assumed they do not dispute your requests as contained in the Petition. It is important to note that the only relief you may be entitled to in a true default is that relief specifically set forth in your Petition and nothing else. For example, if you want real property awarded to you, you must list that property in the Petition along with the assessor’s parcel number (APN). In addition, if you have other personal property or bank accounts to be divided, you must include a list of all such property you intend to divide by default and should do so on the requisite forms. 

Can Default Divorces Be Stopped?

It is important to be aware that California Court’s disfavor true default and will give your spouse every opportunity to participate. Because of California’s six-month waiting period, there is a significant window in which your spouse could change their mind about refusing to engage in your divorce. If your spouse continues in their refusal to participate and a true-default judgment is granted, they may still move to set aside that Judgment. However, this is a much more cumbersome process and difficult to obtain. They are better off if they engage in the process. 

Discuss Default Divorce With Experts at Madigan & Lewis LLP

If you think you have a spouse who may refuse or be unable to participate in a divorce action, it is advisable to speak with an attorney about the risks and benefits of pursuing a true-default. If you are truly concerned your spouse may not file a response to your divorce petition, discuss your options with the skilled attorneys at Madigan & Lewis LLP. 

Our experienced team will help you understand your options and the best path forward for your divorce. Learn more about how we can assist you with divorce in California by scheduling your consultation today.