California Divorce | True Default vs. Default Divorce With Agreement

Posted by Tim Blankenship on

There is still some confusion on the best way to prepare your California divorce.  We will discuss the pro’s and con’s of the “True Default” vs. “Default With Agreement” divorce cases when filing your Amicable California Divorce.

If you are going through an amicable divorce in California, there may be a good reason to not file a Response to your California Divorce .

What Happens If You Don’t Respond To Divorce Summons & Petition?

First, lets discuss what happens when you don’t respond in a California Divorce.  Per the summons, it says you have 30 days to respond after being served the divorce papers.  It further states that if you do not respond, the Court and the other party can make decision about the divorce without you.

But What If You Are In Agreement?

But what if you are working on an amicable divorce and you are mostly in agreement.  Is there any reason you need to file a Response which will cause you to have to pay the Response fee and double the cost of your divorce?

We say that if you are working on an amicable divorce in California you do not need to file a Response and can choose to do either a “True Default” or “Default With Agreement” style divorce.

What Is A True Default Divorce?

A True Default divorce is where one party files and served the other.  Then the other party does absolutely nothing.  They don’t respond and they don’t participate at all.  There are pro’s and Con’s to this.

Pro’s to True Default Divorce:

  1. Useful when the other party does not respond
  2. Easy way to conclude case if no property, no kids, and short term marriage.
  3. Can use “strategic default” meaning we purposely default the other party even if they planned to cooperate.

Con’s To True Default Divorce:

  1. Community property must be evenly divided (even is it is an unfair division)
  2. Must file property declaration which become public record
  3. Defaults are scrutinized by the Court
  4. May require a default hearing (you might have to go to court)

What Is A Default With Agreement Case?

A default with agreement divorce cased is still a default.  It is different than the True Default in that the other party is going to participate. They are not going to Respond, but they are going to do all the paperwork (as if they Responded) and enter into a written agreement with you.

Pro’s To Default With Agreement Case:

  1. Easy to get approved because Court knows both parties were involved.
  2. No public record of property.
  3. No filing free necessary from Respondent.
  4. You will enter into a written agreement.
  5. Not necessary to have equal division of property.

Which Way Should You Go?

Each divorce case is different, but I would say if you can get your spouse to enter into a written agreement, it is better.  If you have children or property, you may want to try for the default with agreement and use the True Default as a last resort.  Why not, if it does not cost anymore to do it.

The true default might be better if you know your spouse will not be involved and not sign anything.  You can have them served and them they are no longer needed.

If you don’t have any property, no children and a short term marriage, you may choose to file the true default from the get-go.

Again, your specific circumstances will dictate the best way to go.

If you have any questions about the California divorce process, please give us a call.  We specialize in California divorce and can help you determine if filing a True Default or a Default With Agreement might be the best way to go. We serve all of California.

Motion To Set Aside Default During Divorce – Santa Clarita

Posted by Tim Blankenship on

Motion To Set Aside Default During Divorce – Santa Clarita

Even though you are going through a divorce, it is still a “lawsuit” as mentioned on the divorce Summons.  So this means there are specific steps that have to be taken to protect your interests which fall in line with most other types of lawsuits.

If you want to set aside the default in a California divorce case, it is possible.  You can use our full service divorce and we will file the motion to set aside default and prepare your response or you can use our California divorce online tutorial service where we show you step by step how to file a motion to set aside default during divorce.

Click here to learn more about our online tutorial of how to set aside the default in a divorce case

This includes the process of filing a Response if you want to enter the case.  When you are served divorce papers, it includes a Summons.

The divorce Summons says you are being served then gives specific information about your rights to respond and when you have to do it by.

The Summons indicates that you have 30 days to file a Response, otherwise your spouse could file a default and you would lose your right to be involved in the case and the judge can make orders without you and based entirely upon the requests of the Petitioner.

So what can happen if you don’t respond to the divorce papers?  As the Summons says, if you have not responded within the 30 days, the Petitioner can file a Request To Enter Default.

When the Request To Enter Default has been filed with the Court, it will be up to the judge to grant it.

Once the Request To Enter Default has been entered, you no longer can respond.  The only option at this point is to file a Motion To Set Aside the Default.  This is a motion you would file on a Request For Order and needs to be submitted with specific language stating the reason you did not respond.

You will be issued a court date, have to serve the motion on your spouse and attend a hearing and speak to the judge.  The Judge will decide on whether to grant your request to Set Aside the default.

If the default has not been granted by the court and only submitted, you make be able to simply file a response and be okay.

We can help you file a Motion to Set Aside Default and get you a hearing to speak to the judge so  you can request the default be set aside.  Please give us a call for more information.