Default Divorce Judgment
Orange County Default Divorce Judgment: Understanding the 30-Day Response Rule
Whether you’re ending a marriage, legally separating from your spouse or ending a registered domestic partnership, the process starts with the filing of a Petition – Marriage / Domestic Partnership form, also known as the FL-100.
Most people think divorce requires both spouses to participate. Not true. California lets you get divorced even if your spouse refuses to cooperate, hides from the process, or just ignores the whole thing. It’s called a default divorce, and it happens more often than you’d think.
How Service of Process Works
Once the petition is filed with the court, the petition generally must be personally served on the other party by someone who is 18 years of age or older and who is not a party to the case. After that happens, a Proof of Personal Service is filed with the court to document that the other party now knows that a legal proceeding involving them has been started.
This service requirement isn’t just a formality – it’s constitutional. Everyone has the right to know when they’re being sued, even in divorce cases. The person serving papers has to actually hand them to your spouse or leave them at their home with another adult. Just mailing them or leaving them on a doorstep doesn’t count.
We’ve seen people try all sorts of creative service methods that don’t work. Texting a photo of the papers, emailing them, posting them on social media – none of that counts as proper service. If you mess up the service, everything that comes after can be thrown out.
The 30-Day Response Window
When someone gets served with a petition, they then have 30 calendar days to file a response with the Court. This response is known as a Response – Marriage / Domestic Partnership, also known as the FL-120 form. Once this form is filed, the case is now “at issue,” meaning that the court has heard from both sides of the case and that it can now proceed in a normal fashion.
Those 30 days are calendar days, not business days. So weekends and holidays count. We’ve had people show up on day 31 thinking they made the deadline – nope, too late.
Some people think ignoring divorce papers will make the problem go away. Others figure if they don’t respond, their spouse can’t get divorced. Both groups are wrong. Not responding just means you lose any say in how things get divided up.
When Default Becomes an Option
However, there are times when a false proof of service is filed when no actual personal service took place or when despite being served with a petition, someone simply fails to file a reply within 30 calendar days. In those instances, the Petitioner may elect to proceed by default judgment or simply by “default”.
Default isn’t automatic – the filing spouse has to ask for it. And honestly, sometimes it’s the best option. We’ve had cases where the other spouse disappeared completely, was in jail, or was being so difficult that default was the only way to move forward.
But here’s what catches people off guard: just because you can take someone’s default doesn’t mean you should. Default cases get extra scrutiny from judges, especially when kids or significant assets are involved. You better have your paperwork perfect and your requests reasonable.
The Default Process Explained
A default is a process whereby the Petitioner informs the court that no response was made by the other party, within the required time, and asks to move forward with the case without the involvement of the other party. This is done by filing a Request to Enter Default (FL-165) form.
Once accepted by the court, the Petitioner can move forward with the case on their own, obtaining legal orders to divide property, address child custody, support and literally every other type of order needed to wind down the relationship and divide the marital assets and debts. The judgment is a final decree by the court, fully resolving all of the issues and dividing all of the assets and debts of the parties.
Think of default as winning by forfeit. The other side didn’t show up to play, so you win. But you still have to prove you deserve what you’re asking for. Courts won’t just rubber-stamp whatever you request.
We’ve seen people think default means they can take everything and leave their spouse with nothing. That’s not how it works. You still have to follow community property laws and make reasonable requests for custody and support.
The Safety Net: Setting Aside Default
Fear not, however, if an opposing party has asked the court to proceed by default or has received a default judgment, there are protections built into the process as found in Code of Civil Procedure section 473, which states that within six (6) months of a default being entered by the court, the defaulted party can ask the court to have the default vacated (cancelled) because a mistake, inadvertence, surprise or excusable neglect led to the default being taken in the first place.
Here’s the thing about section 473 – courts really don’t like default judgments. They’d much rather have both sides participate and hash things out. So if someone has a halfway decent excuse for missing the deadline, judges will often give them another chance.
The court has been instructed to liberally apply section 473 because it is the policy of the State of California that a trial on the true merits of the case is favored over proceeding without the participation of both parties.
We’ve seen defaults get set aside for all kinds of reasons: people who were in the hospital, deployed overseas, dealing with family emergencies, or just got terrible legal advice. The key is acting fast once you realize what happened.
The Six-Month Deadline Is Critical
It is critically important to note that if you wait more than six (6) months from the date the default judgment was entered, that it may be impossible to have it vacated and you may be stuck with the orders made in the judgment.
This six-month deadline is hard. We’ve had people come to us seven or eight months after a default judgment, and there’s usually nothing we can do. The time to act is immediately, not when it becomes convenient.
Some people think they can just ignore a default judgment and it’ll go away. Wrong. That judgment is as real and enforceable as any other court order. Ignore it at your own risk.
Why You Need Professional Help
Making a motion to vacate a default can be somewhat technical and a mistake can have serious and lasting consequences, including having your request denied by the court. If you are considering taking the default of the other party, or if your default has been taken, we strongly recommend that you hire a qualified family law attorney to assist you with the process.
Default cases look simple on the surface, but they’re full of traps for people who don’t know what they’re doing. Get the paperwork wrong, miss a deadline, or make unreasonable requests, and you can mess up your case permanently.
Whether you’re trying to take someone’s default or trying to set one aside, the stakes are too high to wing it. These orders affect your property, your kids, and your financial future. Don’t gamble with DIY legal work when you can’t afford to lose.
Our Orange County certified family law specialist, Don Werno, has handled hundreds of default cases over the years. We know which arguments work with judges, how to structure reasonable settlement proposals, and how to avoid the common mistakes that can derail your case. When your family’s future is on the line, experience matters.
Frequently Asked Questions
Absolutely. You don't need your spouse's permission to get divorced in California. If they won't participate, you can proceed with what's called a default divorce.
How It Works: You file the divorce petition, have them properly served with papers, then wait 30 days for them to respond. If they don't file a response, you can ask the court to enter their default and proceed without them.
Common Misconceptions: Some people think ignoring divorce papers will stop the process. Others figure if they don't sign anything, their spouse can't get divorced. Both are wrong. Not participating just means you lose any say in how assets get divided or custody gets arranged.
What You Can Get: Through default proceedings, you can obtain orders for property division, child custody and support, spousal support, and anything else needed to finalize the divorce. The court can make a complete judgment resolving all issues.
Limitations: You can only ask for what you requested in your original petition. So if you didn't ask for spousal support in your initial paperwork, you can't get it through default later.
Reality Check: Default doesn't mean you automatically get everything you want. You still have to follow California's community property laws and make reasonable requests. Courts won't let you take advantage of someone just because they didn't respond.
Strategic Considerations: Sometimes default is the best option when dealing with an uncooperative spouse. Other times it's worth waiting and trying to encourage participation. An experienced attorney can help you decide which approach makes sense for your situation.
Timeline: Default cases can move faster than contested divorces since you don't have to negotiate or fight over issues. But you still need to wait for California's mandatory six-month waiting period before your divorce can be finalized.
Missing the deadline puts you in default, which means your spouse can proceed with the divorce without your input. But you're not necessarily stuck - California law provides ways to get back into the case.
Immediate Consequences: Once you're in default, your spouse can ask the court to divide all property, determine custody and support, and finalize the divorce based only on what they're requesting. You lose your right to contest their proposals.
The 30-Day Rule: You have exactly 30 calendar days from when you were served to file a response. This includes weekends and holidays. Day 31 is too late for a regular response.
Getting Back In: California Code of Civil Procedure section 473 lets you ask the court to set aside (cancel) your default within six months if you can show mistake, inadvertence, surprise, or excusable neglect caused you to miss the deadline.
What Courts Accept: We've seen defaults set aside for people who were hospitalized, deployed overseas, dealing with family emergencies, or got bad advice about the deadline. The key is having a legitimate reason and acting quickly once you discover the problem.
The Six-Month Deadline: This is a hard deadline. Wait longer than six months after the default judgment, and it becomes nearly impossible to set it aside. Courts have very limited ability to help you after that point.
What You'll Need: To set aside a default, you'll typically need to file a motion explaining what happened, provide evidence supporting your excuse, and propose an answer to the original petition. The process can be technical and mistakes have serious consequences.
Don't Wait: If you've missed the deadline, don't assume it's too late. Contact an attorney immediately to explore your options. The sooner you act, the better your chances of getting back into the case.
Proper service is crucial - mess it up, and everything that follows can be thrown out. California has specific rules about how divorce papers must be delivered.
Who Can Serve: The papers must be served by someone who is at least 18 years old and is not a party to the case. This means you can't serve the papers yourself - you need someone else to do it.
Personal Service: The preferred method is personal service, where the server hands the papers directly to your spouse. This can happen anywhere - at home, work, or any other location where they can be found.
Substituted Service: If personal service isn't possible after reasonable attempts, you can sometimes use substituted service. This involves leaving papers at your spouse's home with another adult who lives there, then mailing a copy to the same address.
What Doesn't Work: Texting photos of papers, emailing them, posting on social media, or leaving them on a doorstep without an adult present don't count as proper service. These methods won't hold up in court.
Service by Publication: In rare cases where your spouse can't be located despite diligent searching, you might be able to serve by publishing a notice in a newspaper. This requires court approval and proof that you've made extensive efforts to find them.
Professional Process Servers: Many people hire professional process servers who know the rules and can handle difficult service situations. Sheriff's departments also provide service for a fee.
Proof of Service: After serving the papers, the server must complete a Proof of Service form and file it with the court. This document proves your spouse was properly notified about the divorce proceedings.
Common Mistakes: Don't use a friend or relative who might lie about service, don't try to serve papers yourself, and don't accept evasive behavior as proof that service is impossible.
Not necessarily. Even in default cases, you're still bound by California law and must make reasonable requests. Courts review default judgments carefully and won't approve unfair or illegal terms.
Property Division: You must follow community property laws, which generally require equal division of marital assets and debts. You can't take all the assets and leave your spouse with all the debt just because they didn't respond.
Child Custody: Any custody arrangements must be in the children's best interests. Courts scrutinize default custody orders carefully since the other parent isn't there to advocate for their relationship with the kids.
Child Support: Support must be calculated according to California's guideline formula based on both parents' incomes and time with the children. You can't ask for arbitrary amounts.
Spousal Support: Any spousal support requests must be based on legitimate factors like income disparity, length of marriage, and standard of living. Courts won't approve excessive or punitive support amounts.
What You Must Prove: Even in default, you need to provide evidence supporting your requests. This might include financial documents, property appraisals, income records, and testimony about your circumstances.
Disclosure Requirements: You must still complete mandatory financial disclosures even if your spouse doesn't respond. These ensure transparency about all assets and debts.
Limitations: You can only get what you asked for in your original petition. If you didn't request spousal support initially, you can't add it later through default proceedings.
Court Review: Judges often ask more questions in default cases to make sure the proposed judgment is fair and follows the law. Some courts require live testimony even when the other side doesn't appear.
Strategic Approach: Frame your requests reasonably from the start. Asking for everything makes you look unreasonable and might cause the judge to question your entire proposal.
Default divorces are generally less expensive than contested cases, but there are still mandatory costs and potential additional expenses to consider.
Court Filing Fees: The petition filing fee is $435, plus additional fees for other required documents. These fees are the same whether your case is contested or default.
Service Costs: Professional process servers typically charge $50-150 depending on how difficult your spouse is to locate and serve. Sheriff's departments charge around $75-100 for service.
Attorney Fees: Many attorneys offer flat-fee packages for uncontested default cases ranging from $1,500-4,000. This typically includes preparing all paperwork and handling the court proceedings through final judgment.
Additional Costs: You might need appraisals for real estate or businesses, especially if significant assets are involved. Copying, notary fees, and certified copies of the final judgment add small amounts.
Potential Complications: If your spouse tries to set aside the default, costs can increase significantly as the case becomes contested. Service issues or problems with paperwork can also add expense.
DIY Option: Some people handle default cases themselves using court self-help resources. While this saves attorney fees, mistakes can be costly and time-consuming to fix.
Hidden Savings: Default cases typically resolve faster than contested divorces, which can save thousands in ongoing attorney fees. The six-month waiting period usually represents the total time from filing to final judgment.
When Costs Increase: If you can't locate your spouse and need service by publication, costs increase due to newspaper fees and additional court filings. Complex property division or custody issues can also drive up expenses.
Value Consideration: Even though default divorces cost less than contested cases, proper legal guidance often pays for itself by ensuring your rights are protected and paperwork is done correctly the first time.