Divorce by default only requires participation by one spouse.
This can be useful in some cases where one spouse wants to get divorced, but the other spouse does not, and intentionally refuses to take part in the process. Or in some cases, if the divorcing couple are still speaking cordially and agree to separate on simple terms, they may be able to arrange things so one spouse doesn’t have to do much, if anything.
When used effectively, divorce by default can be the fastest and least expensive way to end a marriage, but it’s important to understand the potential drawbacks and how it works.
You still have to serve your spouse with the paperwork
Even when proceeding by default, courts want to make sure that both sides are aware of the divorce. Otherwise, it can create a lot of legal problems that are hard to undo later. That’s why the spouse that starts the divorce still has to serve the other in person with all the proper paperwork.
In some extreme cases, where the other spouse is avoiding you or is impossible to locate, there may be a way around this, but it will slow down your divorce by at least a couple months and isn’t always possible.
You need to fill out a lot of forms
Once the other side has been served, it’s mostly a matter of filling out the proper forms. This step is often overlooked, but important. Forms with small details written incorrectly or a name misspelled can cause your paperwork to be sent back, forcing you to start back at the beginning.
Some of these forms will include financial information that you have to share with your spouse, even if they aren’t participating. This is a requirement in every divorce in California, even defaults.
You might not have to go to court at all
It all comes down to what you’re asking for and who the judge is. In general, the simpler your divorce the better your chances of avoiding stepping foot in a courtroom.
If your marriage was short, you aren’t asking for any financial support or property, and there is no custody to deal with, the chances of getting divorced without a hearing are pretty good. On the other hand, if there are young children or a lot of debt and valuable property to divide up, a judge will likely want to see you in person.
The paperwork in these more complex default cases also requires more attention. In the end, a judge always has the discretion to call you into court and can choose whether to grant or deny your request. Many people think if the other side doesn’t show up, they won – but that’s not true.
Divorce by default is not for everyone and shouldn’t be relied on too much
California strongly favors not processing divorces in this way, meaning they want both sides to participate. When both spouses are involved in the process and have their say, there is less chance of confusion and unfair results.
In fact, even if you get divorced by default, your spouse still has a good chance to reopen the case as late as six months after your divorce is finalized.
If you think this may be a good way to deal with your divorce but aren’t sure, call us to speak with an attorney. We will guide you on whether divorce by default would be a valuable or wasteful use of your time and money.
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