Your spouse won’t respond. You’ve filed the paperwork, followed every step, and waited. Nothing. You may feel stuck, but here’s the truth: California law does not require both spouses to show up to end a marriage. If your spouse refuses to participate, you can still move forward.Â
A default divorce in California is a legal pathway that allows the court to finalize your case, even without your spouse’s involvement. Whether you’re the one filing or the one who missed the deadline, this article breaks down exactly what happens and what your rights are every step of the way.
What Is a Default Divorce in California?
A default divorce in California occurs when the spouse who files for divorce serves the other spouse with divorce papers, and the other spouse fails to file a written response within the required time frame. Once that deadline passes, the filing spouse may ask the court to enter a default, allowing the case to move forward based solely on what they requested. If the court finds the paperwork complies with California law, a final judgment can be issued without the other spouse’s input.
This is permitted because California is a no-fault divorce state — under California Family Code Section 2310, a spouse can seek dissolution based on irreconcilable differences alone, and no one can legally prevent the marriage from being dissolved once the proper process is followed. However, a default does not mean the divorce is immediately final. The filing spouse must still complete additional steps, and a judge must sign the final papers before the marriage is legally dissolved.
The Two Types of Default Divorce in California
Not all default divorces look the same. California courts recognize two distinct types.
True Default happens when the respondent completely ignores the process with no response, no communication, and no agreement. In this scenario, the petitioner submits a proposed judgment to the court, and the judge decides whether to approve it based on California law. One important limitation here is that community property must still be divided equally under California law, regardless of what the petitioner requests. The court will not approve an unequal split of community assets in a true default.
Default With Agreement is a different situation where both spouses agree on everything, including property, debts, support, and if children are involved, custody and child support, but the respondent still chooses not to file a formal response. Instead, both parties sign a written settlement agreement, which is submitted to the court alongside the petitioner’s final forms. The judge then makes orders based on that agreement. This option tends to move more smoothly because both spouses are on the same page, even if only one filed paperwork.
Who Can File for a Default Divorce in California?
Before you can file for any type of divorce in California, including a default divorce, you must meet the state’s residency requirements. Under California Family Code Section 2320, at least one spouse must have lived in California for a minimum of six months and in the county where you plan to file for at least three months immediately before filing the petition.
If you live in Orange County, you need to have been a county resident for three months before filing with the Superior Court of California, County of Orange. If you do not yet meet these requirements, one option is to file for legal separation first and then amend the petition to request a dissolution once the residency requirements are satisfied.
How to File a Default Divorce in California
Knowing how to file a default divorce in California requires a clear picture of the required steps. The process follows a specific sequence.
- File the Petition for Dissolution of Marriage (Form FL-100) with your county’s Superior Court. This form outlines your requests regarding property, debts, support, and any children involved.
- Serve your spouse properly. You cannot serve the papers yourself. Another adult who is not part of the case must personally deliver the Summons (Form FL-110) and Petition to your spouse. Once served, the server must complete and file a Proof of Service of Summons (Form FL-115) with the court.
- Exchange financial disclosures. California requires both parties to share financial information. The petitioner must complete and serve a Preliminary Declaration of Disclosure, which includes an Income and Expense Declaration (Form FL-150) and a Schedule of Assets and Debts (Form FL-142). This is required before you can obtain a default judgment.
- Wait 30 days. Your spouse has 30 days from the date they were served to file a Response (Form FL-120). If that deadline passes and no response is filed, you may proceed.
- File a Request to Enter Default (Form FL-165). This tells the court that the response period has passed and your spouse has not filed anything. The court clerk will stamp it, and a copy is mailed to your spouse.
- Submit final judgment forms. You will need to file a Declaration for Default or Uncontested Dissolution or Legal Separation (Form FL-170), the proposed Judgment (Form FL-180), and a Notice of Entry of Judgment (Form FL-190), along with any attachments for support or property orders. The court reviews all submitted documents. If everything is in order, the judge signs the judgment.
- Wait for the six-month minimum period. California has a mandatory six-month waiting period from the date your spouse was served (or filed their first paper, whichever comes first) before a divorce can be finalized. This is separate from the 30-day response window.
What Are the Respondent’s Rights in a Default Divorce?
Being on the receiving end of a default divorce does not mean you have no options. If you are the respondent and you missed the 30-day window to file a response, you still have rights. Most importantly, you should act quickly. The longer you wait, the more limited your options become.
If the default has been entered, the respondent typically must ask the court to set aside the default before filing a Response (Form FL-120) and participating in the case.
Once a judgment is signed, the process becomes significantly more involved, and you will need to demonstrate a legally valid reason for the court to reopen the case. Consulting with a family law attorney as soon as possible is strongly advisable if you find yourself in this position.
What Happens at a Default Divorce Hearing?
In many default cases, no court hearing is required. The judge reviews the paperwork and, if it is complete and consistent with California law, signs the judgment by mail. However, a default hearing may be scheduled if you are requesting spousal support, an unequal division of property, or restricted visitation.Â
The court may also require a hearing in cases involving minor children where custody and support arrangements need closer review. If a hearing is set, only the petitioner attends. The respondent does not receive notice of the hearing date.
Can a Default Judgment Be Set Aside?
Yes. Even after a default is entered, the respondent can ask the court to set it aside. Under California Code of Civil Procedure Section 473, a default may be vacated due to mistake, inadvertence, surprise, or excusable neglect. A motion to set aside the default must generally be filed before the judge has ruled on the divorce, or within six months of when the default judgment was entered. To request this, the respondent files a Request for Order (Form FL-300), checks “Other,” and writes “Set aside a default judgment.” A Declaration (Form MC-030) explaining the reason for the request must be attached.
If a default judgment is set aside, the case resumes as a contested matter and both parties are required to participate.
Key Takeaways
- A default divorce in California happens when the respondent fails to file a response within 30 days of being served with divorce papers.
- There are two types of default divorce: true default and default with agreement.
- You must meet California’s residency requirements under Family Code Section 2320 before filing. That means six months in the state and three months in your county.
- Even in a true default, community property must be divided equally under California law.
- There is a mandatory six-month waiting period before any California divorce can be finalized.
- A default judgment can be challenged and potentially set aside under California Code of Civil Procedure Section 473.
- The process involves multiple forms and specific deadlines. A mistake at any stage can delay your case or put your rights at risk.
Frequently Asked Questions
Does a default divorce mean my spouse agreed to the divorce? Not at all. It simply means your spouse did not respond to the petition within the 30-day window. The court can proceed without their consent or participation.
What if I cannot locate my spouse to serve them? If you truly cannot find your spouse after a diligent search, California law allows for service by publication. This process involves publishing a notice in an approved newspaper. The court must authorize this method, and specific steps must be followed.
Will the judge just give me everything I asked for in a true default? Not automatically. The judge will review your proposed judgment for compliance with California law. Community property, for example, must be divided 50/50. The court may also set a hearing if your requests involve spousal support or other complex issues.
Can my spouse stop the default divorce after it is filed? Your spouse can file a motion to set aside the default within the time limits allowed, but they must have a legally recognized reason under California law. Simply not wanting a divorce is not sufficient grounds.
How long does a default divorce take in California? At minimum, it takes six months from the date of service, but the actual timeline depends on how quickly you complete and submit all required forms and how backed up your county court is.
What forms do I need for a default divorce in California? The primary forms include FL-100, FL-110, FL-115, FL-150, FL-142, FL-165, FL-170, FL-180, and FL-190. Depending on your situation, additional attachments may be required.
Contact Trevino Law – We Are Here for You
A default divorce in California can look simple on paper, but the forms are detailed, the deadlines are strict, and one misstep can set back your case or leave you with a judgment that does not fully reflect your rights. At Trevino Law in Laguna Hills, we work closely with clients throughout Orange County who are going through divorce under difficult and sometimes uncooperative circumstances.
Whether you are filing for a default divorce, worried about a default being entered against you, or simply need someone to review your situation and give you clear answers, our team is ready to help. Contact Trevino Law today to schedule a free consultation. You do not have to figure this out alone.