California Family Code 2336 allows for a default divorce to be filed if there is proof that the respondent was served papers and failed to respond by the deadline.
A California divorce may be filed by both parties working together, or one spouse may file for divorce alone. Whichever spouse does not file the papers must be served with the divorce papers. If parties file together, the spouse can waive their right to notice. In all other divorce circumstances, notice is important to legally obtain a divorce. A judge is not allowed to make judgments or court orders until the non-filing party has been told that a divorce has been filed against them.
If the non-filing spouse, or respondent, fails to respond to the papers and summons, a default divorce may be granted. This means that the party who filed for divorce may have it granted to them without the input of the respondent. Review your legal options with an experienced divorce attorney if a default divorce has been filed against you or you are considering filing for a default divorce decision.
At Quinn & Dworakowski, LLP, our attorneys work to provide compassionate and effective representation to our clients who are dealing with the difficult process of divorce. We have more than 40 years of experience in family courts, and we can leverage that experience in your interests. It’s important to handle a default divorce correctly. If you’ve been served papers for divorce, it is not something you want to ignore. Failing to respond does not make the problem go away—it only means that you will be unable to advocate for your rights and interests.
A default divorce is filed if the non-filing spouse fails to respond within the set deadline. This may happen if:
As long as the papers were served to the spouse, the reason they didn’t respond doesn’t matter. Papers must be served in person by a responsible third party over the age of 18. A spouse’s failure to respond does not keep a marriage in place; it only removes their ability to advocate for their needs and interests during a divorce. Papers can be served by another process if the non-filing party intentionally avoids being served divorce papers in person.
The deadline in California is more than 30 days after the petition and summons have been served. The court will grant a default decision if there is no existing agreement between the parties or a response has not been filed.
Under California’s Family Code Section 2336, proof is required to allow a judge to file a default judgment. This proof can be provided in court or via affidavit, but must show that papers were served and that no response has been filed.
The filing party must complete the following forms to begin a default judgment:
The judge reviews these forms and begins a default judgment. The court is likely to grant the requests of the party who filed for divorce, and it is difficult to change a default divorce order. This is why you don’t want to allow a default divorce to be entered against you, as you lose the right to make any requests for support, custody, or property division.
It is up to the judge’s discretion whether a default divorce is granted with just an affidavit or if a hearing is required. The filing spouse can also request a hearing. Hearings are not always necessary for a default judgment. A judge may require a hearing if the following circumstances are true in the affidavit:
It’s important to avoid a default divorce if you are being filed against. You want to file for a default divorce correctly. Working with an attorney can help protect your interests and ensure that you meet essential legal deadlines.
A: Section 2336 of California’s Family Code states that proof is required, either in a hearing or an affidavit, to enter a default divorce. This means that the filing party served papers on their spouse, and the other party did not file a response. After being served a petition and summons, a respondent spouse has 30 days to file. Otherwise, a divorce can be filed without their input.
A: The California family code for visitation includes sections 3011, 3020, and 3040. Section 3040 states that custody is granted to parties in a certain order of preference based on the child’s interests. This order is:
A: Parental abandonment, or an absent parent, happens when a parent has not had contact with their child for 6 months. There has been no effort to carry out any parental rights or responsibilities, and they have not attempted to make contact. This may be grounds for the involuntary removal of parental rights.
A: Parental alienation occurs most often in families where parents are separating, separated, or divorced. It is a deliberate action by one parent to impact their child’s relationship with the other parent. This may be done in several ways. A parent may prevent the child and the other parent from communicating, schedule fun events during the other parent’s custody or visitation time, or even say negative things about the other parent in front of the child. The court may consider this a form of child abuse.
Sometimes, default court orders can’t be modified. Protect your rights and contact Quinn & Dworakowski, LLP, today.
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