How to Handle an Unresponsive Spouse in a Divorce

Mon 31st Jul, 2023 Family Law

A spouse may choose not to respond to a petition for divorce for many reasons, including that they believe their failure to participate will stop the divorce or because they want to make the process as difficult as possible by drawing it out. Regardless of the unresponsive spouse’s motivation, they cannot truly stop a divorce due to California’s default divorce scheme. If you are facing an unresponsive spouse while attempting to obtain a divorce, a Stockton divorce attorney can help you obtain a default divorce.

What Is a Default Divorce?

The respondent in a divorce (the spouse upon whom the petition for divorce is served) has 30 days to file a response to the petition under California law. If they fail to file a response, the petitioner may then seek a default judgment from a California family law court. A default judgment ends the marriage and typically gives the petitioner everything they ask for. With simple default divorces, the petitioner may not even need to attend court. However, if custody of children is involved or the petitioner is asking for alimony, they may need to attend one or more court hearings.

How to Obtain a Default Divorce

Default divorces generally are available if all of the following are true:

The respondent who received the petition and summons has not responded within 30 days
There is no written agreement between the spouses outlining the terms of a divorce settlement (e.g., a prenuptial agreement)
The respondent is not a member of the armed forces on active duty

The petitioner and their attorney will then need to file a series of forms with the court, including:

Proof of Service of Summons (FL-115)
Request to Enter Default (FL-165)
Property Declaration (FL-160), if asking the court to divide community property
Income and expense declaration (FL-150), if asking the court to order spousal support
Declaration for Default (FL-170)
Judgment (FL-180)
Notice of Entry of Judgment (FL-190)

If you cannot prove that you served your petition and summons on the respondent — for example, because they purposefully evaded service or cannot be found — the court may allow the petitioner to summon the defendant by posting a notice in the newspaper. If the respondent still does not reply, the default divorce can proceed.

Pros and Cons of Default Divorce

The main advantage of default divorce is that it is a quick, easy, and inexpensive way to end a marriage. However, default divorces are not necessarily bulletproof. For example, if it comes to light that the respondent’s failure to respond was due to improper service or fraud by the petitioner, the respondent may request the court to overturn the default judgment.

Speak to a Stockton Divorce Attorney to Find Out Whether a Default Divorce Is Right for You

If you’re not sure whether you should continue to seek your spouse’s cooperation or proceed with the default divorce process, you should consider seeking the advice of an attorney. To get started, please contact a Stockton divorce attorney at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.

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