What Can I Do if My Spouse Is Not Responding To Divorce Papers in California?
Some divorces are consensual, and some are not. Ultimately, however, one unwilling spouse cannot hold a marriage against the will of the other spouse. If your spouse is not responding to divorce proceedings, the California Family Code allows you to seek a default divorce.
Default Divorce vs. Uncontested Divorce
A default divorce is not the same as an uncontested divorce. In an uncontested divorce, the parties amicably resolve all issues, such as property division, child custody, and child support, and more. The judge will typically approve the terms of the divorce without an adversarial hearing.
Default Divorce With Agreement: Not a True Default Divorce
Sometimes, divorcing spouses imitate the sequence of a default divorce. In these cases, the non-petitioning party will ignore the divorce petition. The difference here, in comparison with a true default divorce, is that the parties may create a written agreement for an unequal division of property.
The court will typically accept this agreement and approve the divorce petition. The court’s willingness to accept the unequal division of property renders a default divorce with agreement a useful procedural maneuver. However, this is not a true default divorce.
The True Default Divorce
In a typical default divorce, one of the spouses serves divorce papers on the other spouse, and the other spouse fails to file their answer within 30 days. Typically, the non-responsive spouse opposes the divorce or is trying to undermine the spouse seeking the divorce. This is not always the case. In some cases, for example, the petitioning spouse simply cannot locate the other spouse.
It is important to remember that in a true default divorce, property must be divided in accordance with California community property law. This generally means a roughly equal division of property between the two spouses.
Procedure: How a True Default Divorce Works
To win a true default divorce, you must prove:
- You filed the divorce petition.
- You “served process” on the other spouse (you had a third party deliver your spouse a written notification of your divorce petition).
- More than 30 days have passed since you served process on the other spouse.
- The other spouse has not filed their answer as California law requires.
- There is no written agreement between you and your spouse describing the terms of your divorce settlement.
- Your spouse is not an active duty member of the military (because this might excuse their delay in replying).
- You are not requesting anything that does not appear on your FL-100 divorce petition.
You must also meet all of the other conditions that California normally requires for a divorce, such as residency requirements.
The Last Step: Filing Form FL-165
Once you have met all the conditions for your default divorce and assembled all the paperwork, submit Form FL-165 Request to Enter Default to the court to finalize your default divorce.
Contesting a Default Divorce
Perhaps your spouse was genuinely unaware of your divorce proceedings, or perhaps they had another good reason not to timely respond to your divorce petition. In that case, they can challenge the default divorce at a later date.
With strong enough grounds, they might win their challenge. That might change the terms of the divorce, but ultimately it will not prevent you from divorcing.
Child Custody and Child Support Issues
Even if your spouse ignores divorce proceedings, you do not have a completely free hand to deal with child custody and child support issues. The court will apply the “best interests of the child” standard to any divorce terms that might affect the welfare of any minor children involved.
Since the “best interests of the child” principle prevails in any conflict with parental rights, the court has the right to overrule any divorce terms that are inconsistent with the best interests of the child.
You’ll Need a California Family Lawyer To Deal With an Uncooperative Spouse
The more complex your divorce becomes, the more you are going to need the assistance of an experienced California family lawyer. Hidden issues always arise under such circumstances, and sometimes they can exert a decisive influence on the outcome of your case. Contact a California family law attorney today to learn more.
Contact a Beverly Hills Divorce Law Lawyer Today
If you’re going through a divorce, you need a strong team on your side fighting for your rights. Call Berenji & Associates today to know how we can assist you.
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