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California Default Divorce Property Division Issues

California Default Divorce Property Division Issues

I have written a lot about California default divorce type cases because they can be a little tricky to navigate procedurally with the courts.

You see with an uncontested California divorce where you and your spouse ultimately come up with an agreement and submit to court, the default divorce means that the other party is not going to participate at all.

I often tell people that the default divorce should be used as a last resort. Why? Because there are issues related to property division (and when I say property I mean any type of asset or debt) that you have to be aware of.

Most important to know is that in a default type divorce case, the only things you can ask for your your judgment is what you put on the petition. So if you left things off the petition, such as specifics to child custody or asset and debt division, you cannot put it on the judgment.

In addition to that, one more issue is that the court will normally make you conform to California community property laws and make you divide all the assets and debts evenly, 50/50, even if that is not truly fair.

The default divorce is the only thing you can do if the other party will not participate. But you should encourage your spouse to participate as it will be much easier to finalize your divorce as you get to make the decisions you both agree with as opposed to having to divide everything 50/50 as you would in a default divorce.

Not wanting to pay the Response filing fee is not a good reason to do a California default divorce.  I understand what you are trying to do and save on court fees, but there is a better way. (if you didn’t know a uncontested divorce requires the petitioner to file a petition and pay the court fee and the Respondent needs to file a Response and also pay the court fee)

What we recommend is that you do a default, but not a true default which is what most people do. We suggest you do a default WITH AGREEMENT. Yes, there are 2 types of defaults. Defaults with agreement and default without an agreement.

The default WITH agreement is much like an uncontested divorce in that you will enter into a written agreement with your spouse, but you don’t have to pay the response court fee, just like the true default.

Tim Blankenship – who has written posts on Divorce 661.