“True Default” Divorces

*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.

When you think of the divorce process, you probably think of a very long, and often very messy, process. But what you are actually picturing is specifically a contested divorce. Divorces can be contested or uncontested and in the rarest cases are a “true default: divorce (which follow into the second category of uncontested). Please note that this blog is specific to California state law.

Uncontested essentially means that the two parties divorcing are not taking the case to court/through a long settlement process, but rather don't have property to contest or have come to an agreement together before involving attorneys/the courts. A true default divorce is even more rare than this situation however. To be considered a “true default” divorce (as uncontested divorces are often referred to as default divorce), it actually means that one party petitioned for divorce and the other side (the respondent) did not respond to it in the necessary time frame.

For a divorce petition to go onto true default, it would mean that 30 days have elapsed since the respondent in the divorce was formally served without them responding. To initiate the divorce process, the petitioner or their attorney fills out the petition, summons to appear in court and, in some cases, the child custody and visitation application. These documents must be formally served, and a proof of service will need to be filed with the court.

Within 30 days of the date on that proof of service, one of two things need to happen for the divorce to not go into default. One, the respondent needs to file a response with the court. Or they can also go off of a written agreement between the parties. If the court is not made aware of either, then the divorce would be a true default.

A true default process is the same as that of an uncontested case; 6 months. In California, this half a year long “cooling off period” is mandatory in all divorces. So the absolute soonest you can get a divorce finalized is 6 months from the date of filing. Unless of course it is an annulment, meaning the marriage was not actually valid in the first place.

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