Default in Divorce Cases

Many Californians who want a divorce often worry that their spouse will not agree to the divorce or will

fail to participate in the divorce process once served with a Petition for Dissolution of Marriage. Luckily

for them, California is a “no fault” state and it has mechanisms in place to finalize a divorce even when

one party refuses to respond or participate in the action. A “no fault” state means that either spouse can

request a divorce for any reason whatsoever. There is no requirement that either spouse be “at fault” or

do anything wrong. As long as one spouse wants a divorce and states that irreconcilable differences have

arisen and the marriage is unsalvageable, they can proceed with the divorce.


The most common default situation occurs when one spouse has filed and served their Petition for

Dissolution of Marriage on the other spouse and the spouse who was served fails to respond to said

petition within 30 days of being served with it and the parties do NOT have a written agreement. This is

often called a “true default.” The non-responding party is referred to as being “in default.”


After the other spouse is served with a Petition for Dissolution and the statutory time to respond has

expired, the spouse who filed can ask the court to enter the non-responding spouse’s default. This is

accomplished by filing a judicial council form called a Request to Enter Default. The filing must include

a postage-paid envelope addressed to the non-responsive spouse. The clerk will use this envelope to send

a copy of the request to that spouse. This does NOT finalize the case. What this means is that the non-

responding spouse CANNOT file a response to the divorce petition. Once a request to enter default is

filed with the court, the only way the non-responsive spouse can participate in the action moving forward

is to file a request for order to set aside the request to enter default. Or the parties at any time can always

agree in writing to withdraw the request to enter default and allow the non-responsive spouse to file their



In order to finalize the case in this scenario, the filing spouse must submit judgment documents to the

court in order to obtain a final judgment for the divorce. The documents must state how the party would

like the court to rule on all of the outstanding issues in the case. It is important to note that a party

CANNOT request anything that was not included in their initial filing. For instance, if the filing party did

not request spousal support in their Petition for Dissolution of Marriage, they cannot request spousal

support in the default judgment. The party must also still wait the statutorily required six month period

from the time of service before the divorce can be finalized no matter what.

Remember! Even if a party is proceeding by default, they MUST still serve the other party with their

Preliminary Declaration of Disclosure and file a Declaration Regarding Service of the PDOD with the

court. The non-responding party’s requirement to serve their PDOD can be waived by the filing party.

This can all be done concurrently with the filing and serving of the initial Petition for Dissolution of

Marriage. This allows the moving party to file their Request to Enter Default on the 31st day after serving

the other party.


Sometimes the court will require a hearing before entering a default judgment against the other party.

This is often called a “prove up” hearing because the moving party will have to prove to the court that

everything stated in the paperwork is true and that the court should make the order contained within the

judgment according to what the moving party is requesting. This often happens when a previously

submitted default judgment is incomplete or when the court has questions or concerns about the terms

within it. The court will enter a default judgment after the prove up hearing, if satisfied.


Oftentimes, a default divorce proceeding will be completed long before the six month statutory period for

waiting has ended. In those cases, the court will approve and sign the judgment documents but the divorce

will not be final until the earliest, legally possible day; which is six months and one day from the date of

service of the petition.


Another worry people often have is if their spouse responds to the divorce petition but then disappears or

fails to take any further part in the case. A party can be determined to be “in default” if they fail to show

up for certain court hearings. The court has discretion to do this.

What are the Legal Ramifications of Defaulting on Court Orders?

In addition, a party who responds to the initial petition but then refuses to participate further in the case

can face potentially serious consequences. Just like in any other area of law, the court has the ability to

hold a party in contempt of court if that party fails to comply with a court order. If a party is found to be

in contempt of court, they could face severe penalties such as community service, payment of fees or

fines to the court or the opposing attorney, or even time in jail.


In order to be in contempt, there are four things that need to be satisfied:

1. There must be a valid court order

2. The violating party must have knowledge of the court order

3. The violation party must have the ability to comply with the court order

4. The violating party must be WILLFULLY failing to comply with the court order


Remember! For violation of a CHILD SUPPORT order, the ability to comply element does NOT have to

be met. The reason for this is the state’s public policy of making supporting ones’ children the highest



Keep in mind also that if the contempt is for nonpayment of child support, spousal support, or family

support, each month a payment is missed stands as one count. So if a party misses three months of

support, they could potentially face three counts of contempt, or three times the penalty. There is also no

limit to the amount of times someone can be found in contempt.


A non-complying party can also face monetary sanctions imposed by the family court. For instance,

under California Family Code Section 2107 (c) if a party fails to serve their disclosures on the other

party in the statutory amount of time, the court SHALL impose monetary sanctions. It specifically states

that “Sanctions shall be in an amount sufficient to deter repetition of the conduct or comparable conduct,

and shall include reasonable attorney’s fees, costs incurred, or both, unless the court finds that the

noncomplying party acted with substantial justification or that other circumstances make the imposition

of the sanction unjust.”


Believe it or not, sometimes it is beneficial to both spouses to proceed by default. If the parties are in

agreement about all of the issues in their divorce, they can simply draft an agreement, called a Marital

Settlement Agreement or MSA, and have only one of the parties file all of the paperwork. This is

commonly called “default by agreement.” The main reason for doing this is that only one initial filing fee

needs to be paid. Since the second spouse will not be responding, they can forgo their initial filing fee.

The current filing fee for a dissolution in San Diego is $435. This can also save both parties a lot of time

by being able to file every single document needed to complete the divorce at one time.