Most of the time we don’t think about divorce as a solitary endeavor… Most of the time, both spouses are active participants in settling their joint disputes. But sometimes, however, this isn’t the case.
If one person fails to respond to divorce proceedings, the court may move forward, anyway, and grant what’s known as a default divorce. When this happens, the petitioner is given everything they asked for in their original complaint.
Here’s what you need to know about default divorce in California—including when it happens, and why you want to avoid it—and what the Provinziano team can do to help you navigate this situation.
Default Divorce 101: What is a Default Judgment?
Default divorces are the result of default judgments. But what is that, exactly?
Just like in the “real” world, “default,” here, is defined as a failure to fulfill some kind of obligation. Hence, a default judgment occurs whenever one party fails to respond or engage with legal proceedings.
When it comes to divorce, this default usually occurs when a defendant fails to respond to a complaint within the required timeframe.
In California, that timeframe is thirty days.
For a petitioner (or, the person who filed for divorce), this failure can be incredibly stressful—especially when it’s unexpected. Luckily, however, the state of California won’t make you stay married, just because your spouse won’t engage.
What Does a Default Divorce Do?
If a defendant fails to either accept or reject the terms of the original divorce complaint within their thirty-day window, then the court may grant a default judgment on the divorce.
A default divorce judgment ends the marriage, and essentially gives the petitioner everything they asked for in their original divorce complaint. Which, for a petitioner, isn’t exactly a bad deal!
However, if you’re the respondent (or, the person who’s supposed to be replying to the allegations), then this basically means you just let your ex-spouse make all the decisions on how to divide your life. In addition, you’ve lost the right to appeal, or to have your voice heard in any way.
In the history of relationships, we can’t think of a single time when any of that was a good idea… which naturally begs the question: why do it?
Why Do Couples Default?
As a legal concept, default divorces were never intended to be used intentionally by a couple. Instead, they started out as a failsafe; something to use in situations when one spouse refused to engage. However, it soon morphed into something more.
These days, default divorcers generally fall into three main categories; these include:
The Unreachable Spouse
The Evading Spouse
The Purposeful Spouse
Here’s a closer look at each of these, and why you’d be better off avoiding all three, if you can help it.
1. The Unreachable Spouse
Spouses who fall into this group are ones who cannot be reached or located. Sometimes, they skipped town without leaving a forwarding address. Often, these couples have been separated for an extended period of time with no contact.
In these situations, judges will expect you to make a pretty significant, good faith effort to locate the individual, before granting a default judgment. However, at the end of the day, if they truly can’t be reached, then the divorce will be granted in their absence.
2. The Evading Spouse
The second group of defaulting spouses are those who evade legal proceedings on purpose. Whether they just don’t want to break up, or simply want to be a pain in the neck, these individuals intentionally evade all attempts at proper service, and refuse to engage, once they are.
Unfortunately for these individuals, evasions tactics will neither stall a divorce, or prevent it from happening. Instead, it’ll only irritate the judge, resulting in a loss of rights, and giving you no say over things like property division, child custody, or alimony.
3. The Purposeful Spouse
Like our second category, spouses who fall into this group are also defaulting on purpose. However, for these guys, it’s not an elaborate game of hide and seek, but a purposeful legal strategy.
In this situation, Spouse A isn’t surprised when Spouse B defaults on their response deadline—in fact, they expected it.
That’s because the two of them planned the whole thing—including who would file for divorce, which one would default, and what the terms of their complaint would look like—all before Spouse A even filed the paperwork.
Here, the default judgment process is used intentionally, in order to secure the quickest, easiest, most cost-savvy type of divorce in California—they even get to bypass the mandatory, six-month waiting period.
Sounds pretty good, right?
Unfortunately, it’s not quite as great as it might seem.
The Risks of Default Divorce
In the United States, due process grants you the right to be heard in court, whenever charges are brought against you. This includes the right to an attorney, and to have your side heard in court.
It comes with a catch, though: if you don’t exercise these rights, they go away.
If rights were extended, indefinitely, then the court would inevitably be infringing on the rights of the opposing party. That’s why, when you default—you’re not just agreeing to everything the other party said—you’re also giving up your due process rights in the case.
This means you can no longer:
Object to anything written in the original divorce complaint;
Have a say in important child custody issues;
Change your mind about something;
Offer counter arguments;
Appeal the judge’s decision; or,
Participate in proceedings in any way.
In addition, it’ll be much more difficult to amend a final order, later on (if, say, you later wanted to modify your decree).
That’s why—even if you and your spouse agree—it’s usually better to shoot for an uncontested divorce or mediation, instead.
Overturning a Default Divorce
So your spouse filed a motion for default judgment, and the court granted their request. But now you’re not so sure… maybe you realized you made a mistake… maybe you changed your mind… or maybe you didn’t even realize something was wrong, until it was already too late.
What now? Can you overturn your default divorce, or are you stuck?
A default judgment is a serious matter—and overturning one, even more so. Not only are you asking the court to reinstate due process rights that you basically just slapped away, you’re also asking them to reconsider legal matters that have already been settled.
Petitioners rely on their divorce decree to settle important, post-divorce matters, and overturning one after the fact could have serious detrimental consequences for them.
That’s why the court will only overturn the ruling under certain circumstances; specifically, when the failure to respond was a result of:
Excusable Neglect—when an understandable circumstance caught you by surprise, or because of a legitimate mistake.
Improper Service—when divorce paperwork was either incomplete, improperly served, or neglected, altogether.
Fraud—the default judgment was a result of the other party’s fraud, duress, perjury, or lack of legal compliance.
As you can see, California law does not consider “purposefully triggering a default judgment in order to get a fast and easy divorce” as a good reason to vacate a judgment. Which is why, with so many important rights on the line, it’s much better to try for mediation or uncontested divorce, instead.
Are You Considering Default Divorce in California?
Because it involves giving up so many essential, due process rights, default divorce is almost never something you should do on purpose. If a quick, inexpensive breakup is what you want, then an experienced family law attorney can help you find a different solution.
For more questions about default divorce in California—including alternative divorce options—we want to hear from you. Call Provinziano & Associates at (310) 820-3500, or get in touch online, and let us help you schedule a consultation, today.
