Understanding California Divorce: Default With Agreement vs. Default Without Agreement

Divorce can be a complex and emotionally charged process, and understanding the differences between the various types of divorce is essential for anyone navigating this challenging time. In California, one of the common pathways is through default divorce cases. However, many individuals are often confused about the distinctions between a default with agreement and a default without agreement. This blog post aims to clarify these two types of default divorce cases, outlining their advantages, disadvantages, and processes involved.

 

What is a Default Divorce?

A default divorce occurs when one spouse, known as the petitioner, files for divorce, and the other spouse, referred to as the respondent, does not file a response. This lack of response can stem from various reasons, such as the respondent being unresponsive, unaware of the proceedings, or unwilling to participate. In California, if the respondent fails to respond within 30 days of receiving the divorce papers, the petitioner can request a default judgment from the court.

Types of Default Divorce Cases

In California, there are two main types of default divorce cases: default with agreement and default without agreement. Each type has its own implications and processes, which we will explore in detail.

Default With Agreement

A default with agreement, also known as a hybrid default, occurs when the respondent does not file a response but is willing to participate in the divorce process. This means they are ready to sign the necessary paperwork and agree on the terms of the divorce.

One of the primary advantages of this approach is that it eliminates the filing fee for the respondent. Both parties can negotiate the terms of their divorce, including the division of assets and debts, without the court intervening in their decisions. The court will accept the agreed-upon terms as long as both parties sign the required documents.

Additionally, when spouses agree on how to divide their community property, they have the flexibility to create a distribution that may not be equal. For instance, one spouse might retain a higher value of assets while the other takes on more debts. The court does not concern itself with the fairness of the division, as long as both parties agree.

Steps for Default With Agreement

• Negotiate and draft a divorce settlement agreement covering property division, child custody, and support.
• File the required divorce paperwork and serve the other party.
• Wait 30 days for the other party’s response.
• If there is no response, file the final forms with the signed and notarized agreement.

Default Without Agreement

In contrast, a default without agreement, often referred to as a true default, occurs when the respondent neither files a response nor participates in the divorce proceedings. This situation can lead to significant challenges for the petitioner.

The primary disadvantage of a default without agreement is that the court will not allow for an unequal division of community property. According to California law, the court mandates an equal (50/50) division of assets and debts when there is no agreement between the parties. This means that if the petitioner wishes to retain more property, they must petition the court for an exception, which can be a complicated process involving a hearing.

Challenges with Default Without Agreement

Many individuals who attempt a default without agreement find themselves facing obstacles. For example, if a spouse tries to divide their assets in an unequal manner, the court will likely reject the judgment. In practice, we have seen numerous clients who sought our assistance after their judgments were rejected due to improper division of assets.

For instance, consider a scenario where a couple has $50,000 in community property. If one spouse wishes to keep $30,000 worth of assets while the other takes $20,000, the court will reject this proposal outright in a true default case. The court simply does not have the discretion to approve an unequal division without mutual agreement.

Real-World Examples

To illustrate the differences between these two types of defaults, let’s discuss a couple of real-world scenarios.

Example of Default With Agreement

Recently, a client reached out to us because her husband was willing to sign the necessary paperwork to finalize their divorce but did not want to pay the filing fee. She was unaware that a default with agreement was available to them. After explaining the process, we helped her file the paperwork, allowing both parties to agree on the terms and avoid the complications of a true default.

Example of Default Without Agreement

In another case, a woman attempted to file for a default without her husband’s cooperation. She had a community property pension that she wanted to keep. However, since her husband did not respond, the court rejected her judgment multiple times because she attempted to retain the pension without his consent. After consulting with us, we advised her to pursue a default with agreement instead, which simplified the process significantly.

Why Choose Default With Agreement?

Choosing to pursue a default with agreement offers several benefits:

• Cost Savings: The respondent does not have to pay a filing fee, reducing overall costs.
• Flexibility in Asset Division: Couples can agree on how to divide their community property without the court enforcing a strict 50/50 split.
• Simplified Process: With both parties involved, the paperwork and process are generally smoother and less time-consuming.

Conclusion

Understanding the differences between default with agreement and default without agreement is crucial for anyone navigating the divorce process in California. While a default without agreement may seem like a straightforward path, the potential pitfalls can lead to significant complications. On the other hand, a default with agreement allows for more control over the division of assets and can lead to a smoother resolution.

If you find yourself in a situation where you are considering a default divorce, it is essential to consult with a professional who can guide you through the process and help you make informed decisions. At Divorce661, we specialize in California divorce cases and are here to assist you every step of the way.