What is Default?

If 30 days have passed since the Respondent has been properly served with the petition and summons without a response, then the Petitioner may file a request to enter their default.

Asking for a default is a request for the Court to allow the Petitioner to proceed without the other person, kind of like at a sports game where the other team doesn’t show up. You win by forfeit. However, in family court, just because the default is taken, that doesn’t mean you get whatever you want. You have not “won,” but you are allowed to proceed to complete the divorce process.

Completing your case via default is a two part process. First, your must get the default entered after the other party failed to respond within the 30 days from being served. Second, you must file a request to have a default judgement entered by the Court. This is referred to as a default “prove up” hearing. The Court will review the judgment to make sure that it is equitable and fair. For example, if community property is not divided equally then the Court will strike down those provisions unless you have s specific reason per the Family Code as to why the debts are not divided equally. Once the Court is satisfied with the filing it will enter the judgment.

The other party can ask that the default be set aside. However, they must file their request within the statutory time frame. Depending on the reason to set aside, that time frame can range from six (6) months (Please see CCP 473(b) http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=473.) to two (2) years (Please see Family Code Section 2120 – 2122 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2120-2129 )

Please note that even if the other person’s default is taken and/or the default judgement is entered, they can still seek relief and file responses to and appear at pre-judgment hearings including child custody, visitation, child support, and spousal support.

By | 2017-11-13T22:00:56+00:00 November 3rd, 2016|General|0 Comments

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