Default California Divorce : Default Without Agreement Issues

There are different types of divorce cases, procedurally, that you may find yourself in. The topic here is issues related to filing a default California divorce case also known as a default without an agreement.

Most people don’t start off with the intent of filing a default divorce case. Most people file for their California divorce and hope it to be uncontested or at least where they hope that they and their may come to an agreement at some point.

Different Ways Of Filing Your Divorce Petition

When you file your divorce petition, there are different ways of preparing it. Meaning, if you know you will have an uncontested case, there is no need to include your property on the Petition itself. In fact, with our clients we never include any property on the divorce petition and simply state that it will be amended.

When we say amended, we are talking about simply including the property in the judgment itself, versus listing everything in the divorce Petition.

Here becomes the problem. When it comes to a California default divorce or Default without agreement (means same thing), the only thing you can ask for in your judgment is what you asked for in the Petition. The theory being is that the court assumes that the Respondent did not Respond to the Petition because they were in agreement to what was asked for in the Petition.

And if you didn’t list any property or proposed property division in the Petition, then you can’t ask for any property in your judgment.

This might be easier explained with an example.

Wife files for divorce in California. On the Petition, she simply files for divorce and does not list any property on the Petition itself. She does this because her and her spouse have already come to an agreement, and in fact, have a settlement agreement they have already signed. So her divorce case is mostly procedural at this point.

Then, the husband decides he is not going to do any of the divorce paperwork, as in the court forms, etc. So this leaves wife to try to finalize the divorce case as a default.

She files her judgment as a default and includes the marital settlement agreement that they signed. The court rejects her judgment because the Respondent has not filed his side of mandatory disclosure forms. So the court is assuming that she is trying to file an uncontested divorce judgment because of the marital settlement agreement and reject her judgment because of missing paperwork that needs to be filed with the court.

The problem is that even though she has a signed marital settlement agreement, the Respondent had not prepared his financial disclosures or signed any of the procedural court forms to make this a default WITH agreement vs. default without an agreement.

When she calls me for advice on the best way to finalize her divorce I have to tell her that it will be very difficult. Even though she had a signed marital settlement agreement, she still has a true default divorce case procedurally because he refuses to complete his side of the court documents.

But because she did not list any property on the divorce petition, she cannot file a default judgment.

So here is the fix. She needs to file an amended Petition and list the property on the property declarations, form FL-160 and file those along with her proposed separation of assets and debts.

So while she may have had an agreement to split the property a certain way, with the default the courts will fall back on California law and require her to split all assets and debts 50/50. This is usually a problem, because despite it seeming fair to split everything 50/50, they had agreed to a different division of assets and debts that was more fair.

This is why I always tell my clients it is better to enter into an agreement with your spouse. By coming to an agreement, you get to decide how you want to divide up your things. Property division does not need to be even or 50/50 when you are in agreement. You get to decide how you want to do this.

Many of our clients simply keep the assets and debts each of them have separately acquired, despite the fact that community property laws state a 50/50 division.

When in agreement, the courts do not look at how you are dividing your property or even if it is an equal for fair division. They know that you have entered into this agreement and that if you are signing the divorce judgment that you are obviously making this decision on your own and in your own best interest.

So for this client, unfortunately, she will have to amend her divorce petition and have him re-served. The other unfortunate thing is that when you amend your petition, you automatically set aside the default and give the other party another 30 days to file his or her response.

Most of where our clients who first try to do their own divorce get hung up is with court procedure. Yes, they also have trouble with the forms, but there is so much court procedure you have to understand to get your divorce case approved by the courts, that you will usually, at some point, need our assistance to navigate the California divorce process.