FL-165 Request To Enter Default : Common Issues & ConfusionsSunday, April 30th, 2017
FL-165 Request To Enter Default : Common Issues & Confusions
When it comes to filing the FL-165 Request To Enter Default as part or either your California Default Divorce or California Divorce with agreement, there are many misconceptions on how it works.
There are two questions that are answered in this video. First, “Does the respondent automatically loose their rights to file the Response after 30 days?” and second, “Can the Respondent file their Response even after the 30 days and before the Request To Enter Default has actually been entered?”
Watch the video or continue reading below the video.
Do You Lose Your Rights To File Response After 30 Days?
Okay, let’s answer the first question, “Does the respondent automatically loose their rights to file the Response after 30 days?”. The answer is “no”. It is a common misunderstanding that as soon as the 30 days after service that you loose your right to file your response.
What you need to know is that nothing automatically happens when the 30 days passes. The Petitioner has to take a specific action and that action is that they need to file the FL-165 Request To Enter Default form with the court. So technically you can file your response anytime up until the Request To Enter Default is not only filed but “entered” with the court.
Can You File Response After 30 Days?
This leads us to the second question, “Can the Respondent file their Response even after the 30 days and before the Request To Enter Default has actually been entered?” The answer is Yes! As explained in the first question, nothing automatically happens after the 30 days and the Petitioner needs to file the Request To Enter Default.
But this form is handled differently than other forms that are filed because it needs to be approved by the default clerk and this takes time. For instance, when you filed your petition for divorce, they filing clerk simply stamped it and handed you a copy. But with the FL-165 the default clerk needs to review it. And because the court is so backed up, this can take as long as 30 days in some cases.
What happens is that the judgment clerk needs to review your file and make sure the proof of service was filed correctly and that 30 days has passed. Due to this delay from the time you submit your request to enter default and the time it is actually filed with the court, known as being “entered”, the Respondent can still file their response.
Let me give you an example. When we get calls from clients who tell us that they want to ask the court to set aside the default (which can be done) we first check the court’s website to see if the FL-165 has been filed. If we find that the FL-165 has been filed in the last few weeks, we will actually call the clerk to see if it has been “entered”. This is because sometimes the court will show the FL-165 being received by the court on the court summary but it has not actually been entered. When they tell us that it has not been entered, we can go ahead and file the Response.
And even if the Request To Enter Default was filed, we can always file a motion to set aside the default in most cases.