Quick Answer A default judgment in divorce occurs when the respondent spouse fails to file a response within 30 days of being served. The petitioner can request the court enter a default by filing California Judicial Council Form FL-165 (Request to Enter Default). Once the default is entered, the respondent loses the right to contest the divorce terms. The court can issue a judgment based on what the petitioner requested in the petition, subject to legal limits. There are three types of divorce defaults in California: true default (respondent does nothing), default with agreement (respondent does not respond but signs a settlement agreement), and stipulated judgment (parties resolve all issues by agreement). Default judgments can be set aside under California Code of Civil Procedure sections 473 and 473.5 in limited circumstances within strict time deadlines.
Table of Contents
What a Default Judgment Is
A default judgment is a court judgment issued when one party fails to respond to a lawsuit or other court proceeding. In a divorce context, a default occurs when the respondent spouse fails to file a Response (California Judicial Council form FL-120) within the 30 day period after being served with the Petition for Dissolution.
When a default is properly entered, the absent spouse loses the right to participate in the case. The court can proceed based solely on what the petitioner has presented. The petitioner generally receives what they requested in the original petition, subject to legal limits that the court must enforce regardless of whether the respondent appears.
Default judgments are common in California divorces. Studies suggest that roughly 30 to 50 percent of California divorces result in some form of default. Many defaults are by agreement (the respondent has agreed to a settlement and does not need to file a formal response). True defaults where the respondent has truly disengaged from the case are less common but still significant.
Three Types of Defaults in California
California recognizes three different types of divorce defaults, each with different implications:
1. True Default
A true default occurs when the respondent is properly served but takes no action and does not file a Response within 30 days. The respondent has not engaged with the case at all. This is the most basic form of default. The petitioner can proceed by filing a Request to Enter Default and submitting proposed judgment paperwork.
2. Default with Marital Settlement Agreement
A default with agreement occurs when the respondent does not file a formal Response but does sign a Marital Settlement Agreement (MSA) with the petitioner. The MSA resolves all issues by agreement. The default is technical only. The court issues the judgment based on the agreed terms in the MSA rather than on what the petitioner unilaterally requested.
3. Stipulated Judgment
A stipulated judgment occurs when both parties have actually filed papers and have reached agreement on all issues. Technically this is not a default since the respondent has appeared in the case, but it functions similarly. Both parties sign the stipulated judgment, which the court approves. This is the most cooperative form of divorce resolution.
The Default Process Step by Step
If the respondent fails to respond within 30 days, the petitioner can proceed to default judgment. A board-certified family law specialist can help navigate the default process which has technical requirements.
- Wait 30 days from the date of service or appearance
- Confirm the respondent has not filed a Response
- Complete Form FL-165 (Request to Enter Default)
- Complete Form FL-141 (Declaration Regarding Service of Declaration of Disclosure)
- File these forms with the court along with proposed final orders
- Wait for the court to enter the default (typically 1 to 2 weeks)
- Submit final judgment paperwork including Form FL-180 (Judgment)
- Wait for the 6 month waiting period to expire under California Family Code section 2339
- Wait for court approval of the final judgment
- Receive the Notice of Entry of Judgment (Form FL-190)
When the 30 Day Clock Starts
The 30 day deadline for filing a Response runs from the date of service of process, not from the date of filing the petition. Specifically:
- Personal service: 30 days from when the respondent was personally handed the papers
- Substitute service: 30 days from completion of the substitute service process (typically including mailing)
- Service by publication: 30 days from the date of completion of publication
- Mail service with acknowledgment: 30 days from when the respondent signed the acknowledgment
Calculating the exact deadline requires careful attention to court rules about how to count days. Weekends and court holidays may or may not be excluded depending on the specific rule. The safest approach is to file at least 35 days after service to ensure the deadline has clearly passed.
What the Petitioner Can Request in Default
In a default, the petitioner can generally receive what they requested in the original petition. However, the court is required to enforce certain legal limits regardless of whether the respondent appears. Common requests in default include:
Property Division
The petitioner can request the property division stated in the petition. The court will review whether the division is reasonable. A grossly unequal division may be refused even in a default. The court may require the petitioner to provide explanation or documentation for unusual property characterizations.
Spousal Support
The petitioner can request spousal support. The court applies the California Family Code section 4320 factors. In default cases, the petitioner often receives the requested support amount, particularly if it falls within reasonable ranges. Excessive support requests may be reduced.
Child Support and Custody
These are subject to mandatory legal standards. Child support must be calculated using the guideline formula under California Family Code section 4055. Custody must be based on the best interest of the child. The petitioner cannot get whatever they request for children. The court will impose appropriate orders.
Other Issues
The petitioner can request name restoration, attorney fees, and other relief. The court reviews each request for legal sufficiency.
Limits on Default Judgments
Default judgments are not unlimited. The court reviews submitted paperwork and applies several limits:
- Cannot grant relief greater than what was specifically requested in the petition
- Cannot violate child support guidelines
- Cannot order custody arrangements that are not in the child’s best interest
- Cannot include orders that violate public policy
- Cannot include orders that go beyond the court’s jurisdiction
If the petitioner requested something not properly included in the original petition, that issue is generally not addressed in the default judgment. This is why the petition must be drafted carefully to include all desired relief.
Required Forms for Default
| Form | Purpose |
| FL-165 | Request to Enter Default (formally requests the court enter default) |
| FL-141 | Declaration Regarding Service of Declaration of Disclosure (declaration about disclosure) |
| FL-180 | Judgment (the proposed final judgment for the court to sign) |
| FL-190 | Notice of Entry of Judgment (filed after judgment to give notice to respondent) |
| FL-130 | Appearance, Stipulations, and Waivers (alternative to default for cooperative respondents) |
| FL-100, FL-110, FL-115 | Original petition and service documents (must be on file) |
Mandatory Financial Disclosure Requirement
California Family Code section 2107 prohibits a default judgment from being entered until the petitioner has served the preliminary and final declarations of disclosure on the respondent, even in a default case. This requirement is sometimes overlooked but is mandatory.
The petitioner must:
- Complete the preliminary declarations of disclosure (Form FL-140 plus FL-142 Schedule of Assets and Debts plus FL-150 Income and Expense Declaration)
- Serve the disclosures on the respondent
- File a declaration regarding service (Form FL-141)
- Repeat the process with the final declarations of disclosure before the final judgment
Failure to complete disclosure can result in the default judgment being set aside later. California Family Code section 1101 also imposes substantial penalties for failing to disclose community property, including potential award of 100 percent of concealed assets to the deceived spouse.
Setting Aside a Default Judgment
A respondent who has had a default entered against them can request the court set aside the default and judgment. The grounds and procedures depend on the timing and circumstances:
California Code of Civil Procedure Section 473(b)
This is the most common basis for setting aside a default. The respondent must show that the default occurred because of mistake, inadvertence, surprise, or excusable neglect. The motion must be filed within 6 months of the default being entered. The respondent must also attach a proposed Response showing they have a meritorious defense.
California Code of Civil Procedure Section 473.5
If the respondent did not receive actual notice of the case in time to file a Response, they can move to set aside the default. The motion must be filed within 2 years of the default judgment or 180 days after written notice of entry of judgment, whichever is earlier. The respondent must show they did not have actual notice and that the lack of notice was not their fault.
Fraud or Other Grounds
California Family Code section 2122 provides additional grounds for setting aside divorce judgments including actual fraud, perjury, duress, mental incapacity, mistake, and failure to comply with disclosure obligations. The time limits vary by ground.
How to Avoid an Unwanted Default
To avoid having a default entered against you:
- File a Response (Form FL-120) within 30 days of service
- If you need more time, request an extension from the petitioner or file a motion for extension with the court
- If you have moved, ensure mail forwarding so you receive important documents
- If you receive divorce papers, consult an attorney immediately
- Do not ignore the situation hoping it will go away
- Even if you cannot afford an attorney, file at least a basic Response to preserve your rights
Filing a Response does not commit you to extensive litigation. It simply preserves your right to participate. You can settle the case at any time after filing the Response. You cannot easily participate if a default has been entered.
Strategic Considerations
When Default Is the Right Choice
Sometimes default is the appropriate strategy for one or both parties:
- When the parties have already agreed on all terms informally
- When one party is uninterested in litigation but cooperative
- When neither party wants to pay separate filing fees
- When the petitioner has properly drafted the petition with reasonable terms
When Default Is Risky
Default carries significant risks for the responding party:
- Loss of right to contest property division
- Loss of right to contest custody
- Loss of right to seek spousal support
- Potential for unfair financial outcome
- Difficulty setting aside if circumstances change
Frequently Asked Questions
Q: How long does my spouse have to respond to divorce papers?
A: Your spouse has 30 days from the date of service to file a Response (California Judicial Council form FL-120). The 30 day clock starts when the spouse is personally served or completes substitute service procedures. If your spouse fails to file a Response within 30 days, you can request a default by filing Form FL-165 (Request to Enter Default). The 30 day deadline is calculated based on calendar days but specific rules about weekends and holidays may affect the exact deadline.
Q: Can I get a default divorce if my spouse won’t sign?
A: Yes. Your spouse cannot block your divorce by refusing to sign anything or participate in the case. After your spouse is properly served and the 30 day Response period expires, you can request the court enter a default. The court will proceed based on what you requested in your petition. The non cooperating spouse loses the right to contest the terms. However, you must still complete the mandatory financial disclosure requirement under California Family Code section 2104.
Q: What does my spouse lose if a default is entered?
A: The respondent loses the right to contest the terms of the divorce. They cannot present evidence at hearings, cannot object to the petitioner’s requests, cannot negotiate on issues, and generally cannot participate in the case. The court will issue a judgment based on what the petitioner requested in the original petition, subject to legal limits. The respondent is still entitled to be informed of the proceedings and the final judgment. They retain limited rights to set aside the default in some circumstances.
Q: Can a default judgment be undone in California?
A: Yes, in limited circumstances. Under California Code of Civil Procedure section 473(b), the respondent can move to set aside a default within 6 months by showing mistake, inadvertence, surprise, or excusable neglect. Under section 473.5, a respondent who did not receive actual notice can have up to 2 years to file. California Family Code section 2122 provides additional grounds including fraud, perjury, duress, mental incapacity, or failure to comply with disclosure obligations. The procedures and time limits are technical, so consulting an attorney quickly is important.
Q: Do I still need to complete financial disclosure in a default?
A: Yes. California Family Code section 2107 requires the petitioner to serve the preliminary and final declarations of disclosure on the respondent even in a default case. The petitioner cannot skip the disclosure requirement just because the respondent is not participating. The petitioner files a Declaration Regarding Service of Declaration of Disclosure (Form FL-141) to document compliance. Failure to complete disclosure can be a ground for setting aside the default later.
Q: Is a default divorce faster than a contested divorce?
A: Often yes, but the 6 month waiting period under California Family Code section 2339 still applies. A default divorce typically takes 7 to 9 months from filing because the petitioner can complete the necessary steps faster without the respondent’s involvement. A contested divorce typically takes 12 to 24 months. However, default does not bypass the mandatory waiting period. The court cannot enter the final judgment dissolving the marriage until 6 months and 1 day after service.
Q: What if I just want to ignore the divorce papers?
A: Ignoring divorce papers is a serious mistake that gives your spouse complete control over the outcome. You will likely lose the right to contest property division, spousal support, and custody arrangements. The court will issue a judgment based on what your spouse requested. Even if you cannot afford an attorney, file at least a basic Response (Form FL-120) within 30 days to preserve your rights. Filing a Response does not commit you to extensive litigation; you can still negotiate or settle at any time. Filing a Response is far better than letting a default be entered against you.
Q: Can I file for default if I cannot find my spouse?
A: Yes. If your spouse cannot be located after diligent effort, the court can authorize alternative service methods including service by publication or substitute service through specific procedures. Once proper service is accomplished (even if your spouse never actually saw the papers), the 30 day Response period begins to run. After it expires, you can request a default. However, defaults obtained through service by publication are more easily set aside if the absent spouse later discovers the proceeding and shows they did not have actual notice.
Bottom Line
A default judgment in divorce occurs when the respondent spouse fails to file a Response within 30 days of being served. The petitioner can request entry of default by filing Form FL-165 and submitting the proposed final judgment. The court can issue a judgment based on what the petitioner requested, subject to legal limits on issues like child support and custody. Mandatory financial disclosure is still required even in default cases. The default can be set aside under California Code of Civil Procedure sections 473 and 473.5 in limited circumstances with strict time deadlines. To avoid an unwanted default, file a Response within 30 days even if you cannot fully prepare your case at that point.
If a default has been entered against you or you are considering proceeding by default against your spouse, a free consultation with a board-certified family law specialist can help you understand your rights and options.
About the Author
Donald Glen Haslam, Esq. is a Board-Certified Family Law Specialist by the California State Bar Board of Legal Specialization and a senior partner at Haslam & Thorne, LLP in Ontario, California. He has practiced family law exclusively for over 40 years, representing families throughout San Bernardino County and the Inland Empire. Reviewed by Brian George Thorne, Esq., Board-Certified Family Law Specialist.
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Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Default judgment procedures have specific requirements and time limits. For advice specific to your situation, consult with a licensed family law attorney. Reading this article does not create an attorney-client relationship with Haslam & Thorne, LLP