Welcome to FreeDivorce.com.
Christina: This is Christina.
Ed: This is Ed. Today, we are going to talk about how to process a “true default” divorce case.
Christina: Ed, can you describe situations where true default cases come up?
Ed: Sure. Assume you want to process your divorce as an uncontested divorce, but your spouse refuses to cooperate. He or she won’t negotiate with you. Perhaps your spouse does not want the divorce and hopes that if he or she stalls, you will eventually reconcile. Perhaps your spouse is angry that you want a divorce and seeks to punish you by refusing to cooperate in any way. What do you do? You can take your spouse’s default and have the court issue a “true default” divorce judgment.
Christina: How does processing a true default case differ from processing an uncontested divorce case?
Ed: In order to process a true default case, you need to follow most of the same procedures and fill out most of the same court forms described and explained in our earlier videos. Almost all of the information about court forms and court procedures that we went over in the earlier videos also applies to “true default” cases.
To start a “true default” case, you file with the court the same court forms that we discussed in our “Initial Filings” video for other types of divorces. I’m referring to the Summons, which is FL-110, the Petition, which is FL-100, and, if you have minor children, the UCCJEA, which is FL-105. All of these forms can be found in our Court Forms Database. You can always go to our Court Forms Database and find any and all of the forms that we discuss in any of our videos. You can pull up any form you need from our database, fill out the form online, and then print the form for a fee. If you don’t know how to fill out these forms, watch our earlier videos on “Initial filings”.
If you can’t afford to pay the court’s filing fee, watch our free video on how to apply for a fee waiver.
In a true default case, after you fill out your Initial court forms and file those forms with the court clerk, you serve the forms on your spouse. If you have not already done so, watch our earlier video on how to serve your court forms on your spouse.
In a true default case, just like in an uncontested case, you will need to fill out the various court forms that make up your “Preliminary Declaration of Disclosure” and then serve your spouse with your Preliminary Declaration of Disclosure documents. Declarations of Disclosure documents are comprised of four court forms consisting of the following: 1) Declaration of Disclosure, which is FL-140; 2) Schedule of Assets and Debts, which is FL-142; 3) Income & Expense Declaration, which is FL-150, and 4) Declaration Regarding Service, which is FL-141. If you have not already done so, watch our earlier videos on Declarations of Disclosure so you will understand all about these forms.
In a true default case, if you wish, instead of filling out the Schedule of Assets and Debts, FL-142, as part of your Preliminary Declaration of Disclosure, you can substitute the FL-160 for the FL-142. We briefly mention the FL-160 in this video, and discuss it more extensively in the next video.
In a true default case, just like in an uncontested case, you will need to get educated about the law, before you move forward with the divorce. You can get educated by watching our earlier series of “Getting Educated” videos. In those videos, we cover a wide range of topic, including, but not limited to, educating you about community property laws, child custody, child support, spousal support, division of the family home, division of the family business, division of credit card debt, student loans, and various reimbursement claims that can be made. Watch these free videos and get educated.
Finally, in order to process a true default case, you will need to prepare a default judgment, which is FL-180. You should watch our earlier videos on drafting divorce “Judgments”. Those videos will explain how to draft your judgment and how to assemble your judgment. The videos will also explain about the additional court forms that go along with the judgment when you submit the judgment to the court and how to file your judgment with the court.
Christina: So, if my divorce is going to be a true default case, I can’t just start with this video and know what I’m doing. I have to watch the earlier videos, correct?
Ed: That is absolutely correct. Almost all of the information contained in the earlier videos is also going to apply to true default cases. So, watch those videos.
For a true default case, you will need a few additional court forms and you will need to know a few more procedural details that are not discussed in earlier videos. The information in this video, and the next “true default” video, discuss only the additional court forms and additional procedural information you will need to process a true default case. Explanations regarding all of the other court forms, except for the forms unique to true default cases, are covered in earlier videos on how to process divorces where the parties were able to settle all issues with agreements. Explanations regarding those forms and those court procedures will not be repeated in this video.
Christina: You said that to start a true default case, I file the same court forms that I would file to start an uncontested case. Do I fill out any of those forms differently if I know in advance that my spouse is going to default?
Ed: Yes. You fill out the divorce petition differently. As I already mentioned, the first step for starting a “true default” case is to file your initial filings consisting of your Petition (FL-100) and Summons (FL-110), and if you have minor children, your UCCJEA (FL-105). You fill out the Summons and the UCCJEA the same way, regardless of the case is going to be an uncontested case or a true default case. However, you fill out the Petition differently.
If you know your spouse won’t cooperate before you even start the divorce process, then you want to handle the divorce petition (FL-100) a bit differently than you would if your spouse is going to cooperate. You want the divorce petition to state, in as much detail as possible, exactly what orders you want the divorce judgment to include. One way to do this is to attach to your divorce petition, as an exhibit, the exact Judgment of Dissolution you want the court to issue.
When you serve someone with a Summons and Petition, the Summons tells that person they have 30 days in which to file a Response with the court. A typical divorce Petition tells the person, in very general terms, what kinds of orders you want the court to issue for child custody, child support, spousal support, and the division of property. If your spouse receives a copy of your Petition and does not file a Response, which is FL-120, within the 30-day time limit, the court assumes your spouse agrees with all of the court orders you are requesting in your Petition. If you attached a proposed Judgment of Dissolution as an exhibit to your divorce Petition and you state in your Petition that you are requesting that the court issue your proposed judgment, and you then serve your spouse with the Petition and your spouse fails to file a Response within the 30 day period, then the presumption will be that your spouse read your Petition, including your proposed judgment, and did not have a problem with any aspect of your proposed judgment. The court will then approve your proposed judgment as part of the default process.
Christina: If I know my spouse will default before I file my divorce petition, and you’re saying I should attach my proposed judgment as an exhibit to my petition, how do I draft that judgment?
Ed: If you don’t know how to draft a proposed Judgment of Dissolution, watch our earlier videos on how to draft and assemble a divorce judgment. For a true default case, you will use the Judicial Council forms approach to preparing your divorce judgment because your spouse will not be signing any Marital Settlement Agreement since your spouse is not cooperating with the divorce process.
Christina: Do I have to attach a proposed judgment as an exhibit to my Petition?
Ed: You don’t have to attach a proposed Judgment of Dissolution to your Petition. You don’t have to attach anything. If you want, you can just file the 3 page FL-100 petition. However, just filing the 3-page petition is not the best approach because it does not put your spouse on notice as to the specific court orders you are seeking. If you are not going to attach a proposed judgment to your Petition, then, when you fill out the Petition, put in as much information as you can about the orders you want your judgment to include.
Christina: How do you do that without attaching a proposed judgment to your divorce petition?
Ed: You can fill out and attach to your Petition the various child custody forms that are listed in section 6(c) of the Petition. For section 9 of the Petition, fill out and attach a separate property declaration, which is FL-160, listing all of your separate property. For section 10 of the Petition, fill out and attach a community property declaration, which is FL-160. All of these forms are contained in our Court Forms Database. The more information you include or attach to your Petition, the more your spouse will be on notice as to what you want the court to order, and the more likely it is that your default judgment will withstand a future motion to set it aside.
Christina: Is it a problem if my divorce petition does not put my spouse on notice as to the kinds of orders I want in my divorce judgment?
Ed: Yes. You don’t want there to be any inconsistencies between what you ask for in your Petition and the judgment of dissolution you later ask the court to sign. For example, assume you filled out the Petition, did not attach a proposed judgment of dissolution, and in your Petition, you did not check the box asking for an award of spousal support. You then serve your spouse with the Summons and Petition and your spouse does not file a Response within the 30 day time period. You then take your spouse’s default. You then obtain a judgment of dissolution that awards you spousal support. Later, your spouse will be able to set aside the judgment of dissolution, or at least the part of the judgment that awards you spousal support, because the judgment you obtained includes orders that you did not request in your Petition.
Christina: What if I don’t know in advance that my spouse will default? What if I think my spouse will cooperate and so I don’t attach a proposed judgment to the petition, but after I serve my spouse, he ignores everything and just does not respond?
Ed: If your Petition is a bit vague as to what you are requesting in terms of a judgment because you didn’t expect your spouse to default, one option is to file an Amended Petition, that includes more detailed requests or has a proposed Judgment of Dissolution attached as an exhibit, and then re-serve your spouse with the amended Petition. When your spouse again fails to file a Response in the 30 day period, then take your spouse’s default. The court will approve your proposed judgment, assuming it is all in order, because your spouse was on notice as to the exact judgment your Petition was requesting the court to issue and your spouse elected to not respond. An amended Petition is the same as the regular Petition. You just check the box on page one of the Petition that says “Amended”. That box is located in the caption section of the Petition. Then, just file the amended Petition with the court and re-serve the Summons, Petition, and the UCCJEA if you have minor children. If you file an Amended Petition, you don’t need to pay another filing fee.