A default divorce occurs when the “Responding Party”, also known as the Respondent, does not answer or submit the filings necessary to participate in the dissolution proceedings. So, it comes down to “Pleading Party”, also known as the Petitioner, is left to navigate and determine the dissolution on their own.
There are two different types of defaults in the family court world – a True Default and a Default with Agreement. I much prefer the default with agreements; these are often the most amicable and smooth sailing dissolution proceedings that occur.
A Default with Agreement:
A default with agreement can be a great tool for divorce when only one party wants to obtain a lawyer or only one party is proactive in getting through this process. A Default with Agreement is essentially the packet for Judgment with a signed, executed agreement attached. The Parties have the option to work together to divide assets, determine support payments, if any, divide debts, determine a custody schedule, etc. on their own. A Marital Settlement Agreement (MSA) is then drafted detailing the terms of each issue in a divorce/dissolution and submitted to the Court with both Parties’ signatures. The Responding Party never has to file Court paperwork or appear at the Court check in hearings, etc. The Responding Party participates on the backend and does not have to deal with the Court in any capacity. These types of divorces are usually quicker since the Parties are working together in an effective manner to come to an agreement.
Where the default comes in is because with Responding Party never responding or filing paperwork, they technically have the ability to be defaulted because they haven’t responded within the timeline needed. However, this is either a purposeful non-response so that the parties can take a default by agreement route OR the parties are able to quickly come to an agreement and a response is not necessary. These are extremely common situations and not one party will experience adverse effects from a default with agreement.
A True Default:
A True Default is where dissolutions become tricky. A true default is where the Responding Party either refuses to participate; is evading service and doesn’t want to be found; etc. Once a Petitioner for dissolution is filed and served, the Responding Party has 30 days from the date of service to file and serve their response. If the Responding Party fails to do so, they are in the territory of being defaulted.
A true default has additional steps the party requesting the default must take. In a regular dissolution, the parties will draft their Preliminary Declarations of Disclosure and exchange them between each other. These documents are not only necessary but required by the Court. The Court will not accept an agreement or allow you to default the opposing party without these financials documents at the very least being drafted. With a True Default, we prepare forms called Property Declarations – these forms are arguably one of the most important forms in True Default because the Court uses these forms to understand what assets exist, whether the filing Party has determined them to be separate property or community property, and how the filing Party would like them divided.
However, True Defaults have both pros and cons, the pros are that the filing party gets to determine what assets/debts are Community and Separate Property and how to divide them amongst themselves (within the bounds of the law, of course), yet a con of a true default is that the filing party must be aware of and have enough detail of each asset/debt that the parties currently have.
A True Default certainly takes a little bit longer than the former choice of a default with an agreement because there are additional timelines and paperwork that must be filed. Once the 30-day filing deadline for a response has elapsed and your Preliminary Declarations of Disclosure with the accompanying property declarations have been provided to the non-responsive party, you must request to enter default against the non-responsive party.
Once that default has been entered and/or granted, you alone are responsible for providing the Court a Judgment Packet and informing them what and how will be divided.
I am not a fan of True Default’s as it puts additional pressure on the filing party for a variety of reasons – the two biggest being 1. You are doing this alone with no input from the non-responsive party and 2. You are left to determine what assets/debts exist, how you want them divided, and providing the appropriate paperwork to the Court for review and acceptance.
All in all, defaults come in all sorts of flavors and sometimes are the only tool we have to get parties divorced when another party is non-responsive.