Failing To Respond

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Failing To Respond

To file a divorce petition in California, a spouse must formally serve the divorce papers on the other spouse. Through these papers, the other spouse is notified of the divorce proceedings and gets an opportunity to respond. After the Respondent’s papers are served, the divorce proceeding moves forward.

If you have been served divorce papers from your spouse, but you do not wish to file your Response, it will not stall the divorce proceedings. Therefore, even if you do not want a divorce, you should still file your Response with the court. You will not gain anything by not responding because the court can grant a divorce unilaterally only at the request of one spouse.

More importantly, by failing to respond, you will have no way to protect your rights or clarify your legal position before the court with regard to critical issues such as child custody, child support, alimony, and property division.

What Happens if You Fail to Respond?

If you fail to respond within deadline after the divorce papers have been served on you in Orange County, the Petitioner (your spouse) can anyway move forward with the divorce proceedings. The deadline for your Response is 30 days, and your failure to respond within this period will be considered a situation of “true default.”

This would mean that you have given up your rights to make your arguments or have any say in the divorce process. Some people mistakenly think that the court will grant the divorce anyway, even if they don’t respond. While the marriage may be dissolved anyway, but with this approach, the court will never get to hear your side of the story.

Courts in Orange County do not appreciate parties who neglect this important action (Response). Therefore, your failure to respond will most likely mean that the Petitioner will virtually get a walkover and the court will grant whatever he or she has requested in the Divorce Petition.

Potential Consequences for You

Your failure to respond to the divorce petition could mean that you end up with court orders regarding child custody, visitation, child support, alimony, and property division that may look one-sided. As the court would be blindsided to your circumstances, it will only go by whatever facts and arguments have been put forward by the other party. 

After you received the court orders in these critical divorce-related matters, you might realize that you could have defeated these decisions in court if you were present. If you did not respond and did not get notified of court hearings, you will not have an opportunity, later on, to seek order modification from the court.

Last but not the least, your failure to respond to the divorce petition and your absence from the court hearings may only result in prolonging the finalization of your divorce.

The Petitioner Must Complete All Legal Documents

If you are the divorce petitioner, and your spouse has failed to file a Response, you will still need to complete several forms that are mandatory in a case of true default in Orange County. To fulfill these requirements, it is best to seek professional guidance from a knowledgeable divorce lawyer. The forms to be completed will include:

  • FL-165: As the filing spouse, you will have to fill out this request to enter default in order for your case to move forward.
  • FL-170: As the filing spouse, you will have to complete this form, which declares default (or uncontested marriage dissolution).
  • FL-180: This is a form you will fill out to request a Judgment from the court.
  • FL-190: You will have to complete this form in order to file your request for Notice of Entry of the Judgment.

If as the divorce petitioner, you are seeking a child custody order, property division, and/or alimony, you will have to complete several more forms. The family law courts in Orange County will grant a “true default” divorce only after you have completed all the mandatory forms.

Can the Response Deadline be extended?

The 30-day time limit for filing a statutory response to the divorce petition can be extended if both parties agree to it. It is important that this agreement for extension of the response period is made in writing and signed by both parties.

Your lawyer can help you secure this written, which will ensure that later on, your spouse cannot deny that they had agreed to an extension. With this agreement in place, the filing spouse cannot move forward with the divorce proceedings until you have filed the Response or the new deadline has ended.

Can the Judge Set Aside True Default?

If your Response deadline has passed, the other party may comfortably prove their case before the judge and obtain a divorce order that they were looking for. An important question is: if you change your mind (as the Respondent) at a very late stage, can you convince the judge the set-aside or vacate the default?

While the situation appears unimaginable, seasoned divorce attorneys know that in exceptional circumstances, it can happen. Clearly, the court is not going to give you a second chance unless you are able to come up with a solid justification of why you failed to respond within the deadline.

Perhaps the most effective reason you can give in this situation is that the Divorce Petition never actually reached you. If the person who served the divorce papers handed them over to the wrong individual or falsely claimed the delivery of papers when it was not the case, you can prove it and finally have your day in court.

Another potential argument for your failure to respond could be that you were too sick or injured to file a response within the deadline. However, even for these reasons to be considered by the court, the requests must be made within a specific time period. With an experienced family law attorney in Orange County by your side, you will be able to explore all possibilities to ensure that your rights are protected in a divorce.

Please call or contact our office online to arrange for an appointment about your case today.

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