Whether you’re ending a marriage, legally separating from your spouse or ending a registered domestic partnership, the process starts with the filing of a Petition – Marriage / Domestic Partnership form, also known as the FL-100.
Once the petition is filed with the court, the petition generally must be personally served on the other party by someone who is 18 years of age or older and who is not a party to the case. After that happens, a Proof of Personal Service is filed with the court to document that the other party now knows that a legal proceeding involving them has been started.
When someone gets served with a petition, they then have 30 calendar days to file a response with the Court. This response is known as a Response – Marriage / Domestic Partnership, also known as the FL-120 form. Once this form is filed, the case is now “at issue,” meaning that the court has heard from both sides of the case and that it can now proceed in a normal fashion.
However, there are times when a false proof of service is filed when no actual personal service took place or when despite being served with a petition, someone simply fails to file a reply within 30 calendar days. In those instances, the Petitioner may elect to proceed by default judgment or simply by “default”.
A default is a process whereby the Petitioner informs the court that no response was made by the other party, within the required time, and asks to move forward with the case without the involvement of the other party. This is done by filing a Request to Enter Default (FL-165) form. Once accepted by the court, the Petitioner can move forward with the case on their own, obtaining legal orders to divide property, address child custody, support and literally every other type of order needed to wind down the relationship and divide the marital assets and debts. The judgment is a final decree by the court, fully resolving all of the issues and dividing all of the assets and debts of the parties.
Fear not, however, if an opposing party has asked the court to proceed by default or has received a default judgment, there are protections built into the process as found in Code of Civil Procedure section 473, which states that within six (6) months of a default being entered by the court, the defaulted party can ask the court to have the default vacated (cancelled) because a mistake, inadvertence, surprise or excusable neglect led to the default being taken in the first place. The court has been instructed to liberally apply section 473 because it is the policy of the State of California that a trial on the true merits of the case is favored over proceeding without the participation of both parties. It is critically important to note that if you wait more than six (6) months from the date the default judgment was entered, that it may be impossible to have it vacated and you may be stuck with the orders made in the judgment.
Making a motion to vacate a default can be somewhat technical and a mistake can have serious and lasting consequences, including having your request denied by the court. If you are considering taking the default of the other party, or if your default has been taken, we strongly recommend that you hire a qualified family law attorney to assist you with the process. Don Werno is a Certified Family Law Specialist with more than 20 years of experience helping people through the family court process.