Divorce and Default

Most people do not go into a marriage expecting it to end. Unfortunately, for many marriages that is the case. In California, there are two grounds for divorce: irreconcilable differences and permanent legal incapacity to make decisions. Irreconcilable differences are when there has been an irretrievable breakdown in the marriage and no efforts for reconciliation would be fruitful. It usually refers to situations where the spouses have fundamental differences in lifestyle, personality, or other areas that lead to a breakdown in marriage. This is the most common ground for divorce in California. While permanent legal incapacity is a ground for divorce, it is rarely used. A marriage can only be dissolved on the basis of permanent legal incapacity where it is proved by medical or psychiatric evidence that one spouse is unable to make decisions for his or herself and that inability to do so is permanent. This could be a result of traumatic injury, illness, or a psychological disorder.

To proceed with a divorce in California, there are also certain residency requirements that must be met. Residency requirements are separate from the grounds for divorce. Grounds for divorce refer to the reasons why a person is seeking to end their marriage. Residency requirements in divorce refers to the minimum length of time that a spouse has to be a resident of the state or county before they are eligible to file for divorce in that jurisdiction. In order to file a Petition for Dissolution of Marriage in California, you and/or your spouse must have lived in California for at least six months. The filing party must also have lived in the county where the Petition for Dissolution of Marriage is filed for at least 90 days.

But what happens if you have grounds for divorce and meet the residency requirements, but one party does not want the divorce? The short answer is the divorce can proceed regardless of whether one spouse is a willing participant or not. In other words, if your spouse ignores notice of the dissolution proceedings and chooses not to participate, you can obtain a divorce judgement anyway. You do not need their cooperation to get a divorce. The divorce proceedings proceed by way of default.

What is a True Default Divorce?

California is a “no fault “state. As such, you do not need to prove the fault of the other party to obtain a divorce. Since California is a considered a “no fault” state, California courts do not consider other grounds for divorce such as adultery, abandonment, cruelty and imprisonment which other states may recognize.

In California, the divorce proceedings begin when one spouse files a petition to dissolve the marriage. The other spouse must then be served with the dissolution paperwork according to the procedural rules. Once the non-filing spouse is served with the dissolution paperwork, they have 30 days from the date of service to file a response. A divorce by default occurs when the person who files for divorce does not receive a timely response from the other spouse. If the non-filing spouse receives the dissolution paperwork yet fails to issue a response within the deadline, the spouse who filed for divorce may proceed without the other party. This is a true default divorce.

A default can occur not only where the non-filing spouse may choose to not cooperate with the divorce or ignore the divorce, but also where they may be even unaware of it. This usually occurs in a situation where the non-filing spouse is evading service of paperwork and the filing spouse requests the court permit service by publication which is an alternate method of service under the circumstances.

Once the non-filing spouse fails to file a timely response to the Petition for Dissolution of Marriage, the filing spouse can file a request to enter default. The Court can then proceed with the dissolution proceedings in the absence of the other party. The defaulted party loses the opportunity to make any arguments as to child custody and visitation, support, and division of the assets. Essentially, the filing spouse can put forward their position with no opposition and the matter proceeds to judgment without any input from the non-filing spouse.

The advantage of a default divorce is that it can save time and attorney’s fees for the filing party since the other party is not contesting any terms or issues to be considered by the Court. The disadvantage is that if the responding party honestly was not aware of the proceedings and did not participate, they may ask the court to set aside the default.

It is not uncommon as well for a party that failed to respond to attempt to intervene once they become aware of the request to enter default. However, it is difficult to set aside a default judgment of dissolution once it is entered.

For more information about co-parenting in your military divorce, check out our website: www.frfamilylaw.com or call (858) 720-8250 and ask to speak with military family law attorney Tana Landau.

This article is intended only for informational purposes and should not be taken as legal advice