Divorce by Default in Orange County
Put very simply, a default divorce is one in which the other party does not file their Response and you are allowed to finish your divorce alone, without the other party’s involvement. What does that mean? It means that the other party is cut out of the divorce process and the Judge should not hear any arguments or accept any filings after the default is entered from your spouse. And it means that you don’t have to wait for your spouse to finish your divorce.
After you have filed your initial divorce paperwork, including your Summons, Petition for Dissolution of Marriage and any other required documents for your particular divorce, you have to have someone else serve that paperwork on your spouse. (as a party to the case, you cannot serve your spouse yourself) That means someone other than you must actually hand a court-stamped and filed copy of that paperwork to your spouse. That person can be a friend, family member or even a professional process server. Next, that person must sign a form called a Proof of Service, listing all of the divorce paperwork that was served on your spouse, when and where the other party was served and then that form must also be filed with the Court. After the other party is served, you must wait 30 days to see if the other side files their Response. (That is the “answer” to your Petition) If after 30 days your spouse does NOT file a Response, you can take their “default” which basically kicks them out of the case. You need to file what is known as a “Request to Enter Default” with the Court along with certain other paperwork and if you have done everything right, the court will enter a default against your spouse, and you can continue forward without your spouse involved in the divorce. The next step would be for you to prepare what are known as Preliminary Declarations of Disclosure.
These are required financial documents and you MUST complete and serve your completed documents on the other party because you cannot get divorced in California without properly completing and serving your Preliminary Declarations of Disclosure and then filing a proof of service with the court. The past step is when you prepare and file your Judgment. A judgment is how you end a divorce case. If you try to submit your judgment without first completing your Preliminary Declarations of Disclosure, the Court will automatically reject your proposed Judgment. If you ONLY file a proof of service without REALLY completing and serving your Preliminary Declarations of Disclosure on your spouse, you need to know that the court can and will set aside your judgment, even 10, 15 even 20 years later. Declarations of Disclosure are REQUIRED.
Then, once you try to file the judgment packet, the court may require you to go to court and explain some of the things in your proposed judgment to the judge. This is a short hearing with just you and the judge talking. The judge will ask you some questions to make sure everything in the judgment is fair, equitable and legal. This short hearing is called a “prove-up” hearing. You will want to bring 3 copies of your entire judgment packet to court with you on the day of the “prove-up” hearing. The Court will most likely call you in if you have children and are seeking child support and will definitely call you into court if your property division is not equal or equitable. However, on some occasions, if your judgment is in perfect order, the Court may simply sign your proposed Judgment and mail it to you and your spouse, ending your divorce. All of this is what is what is known as a “True Default” case.
DEFAULT WITH AGREEMENT
However, just because you have “defaulted” your spouse, that does not mean that you and your spouse cannot agree to the terms in your judgment and work together to get it completed. This is called a “Default with Agreement.” However, you should be aware that by signing the judgment, the other party will ALSO be forced to pay their Response filing fee of $435 (or the cost of the filing fee, should it go up). This is because when they simply sign anything that gets filed with he court, they are making their “first appearance” and must pay their first appearance fee.
An executive divorce attorney ensures default divorces proceed smoothly, even with minimal cooperation from the other party.
Once you and your spouse have come to an agreement about the proposed Judgment and what it states, both of you will sign it.
Make sure that your spouse’s signature is notarized. A notary is an official who can witness the signing of documents and certify that those signatures are authentic. You will then file your agreed-upon or “stipulated” Judgment with the Court along with your Request to Enter Default form and certain other necessary forms. Again, make sure that you have previously completed your Preliminary Declarations of Disclosure or they will automatically reject your judgment packet. The Court will review the stipulated Judgment and send you notice in the mail that they either approve the judgment by signing it, reject it by sending it back to you with the reasons listed for the rejection, or set a hearing for you to come in for a default prove-up hearing as we described above.
