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Make Petition Specific

If you know in advance that your spouse will default, make your divorce petition specific as to what you want:

The first step for a “true default” case is to file your initial filings consisting of your Petition (FL-100) and Summons (FL-110), and if you have minor children, your UCCJEA (FL-105).  Read the “Initial Filings” section of this website for information about these forms and to learn how to serve the forms on your spouse.

If you know your spouse won’t cooperate before you even start the divorce process, then you want to handle the divorce petition (FL-100) a bit differently than you would if your spouse is going to cooperate.  You want the divorce petition to state, in as much detail as possible, exactly what orders you want the divorce judgment to include.  One way to do this is to attach to your divorce petition, as an exhibit, the exact Judgment of Dissolution you want the court to issue.

When you serve someone with a Summons and Petition, the Summons tells that person they have 30 days in which to file a Response with the court.  A typical divorce Petition tells the person, in very general terms, what kinds of orders you want for child custody, child support, spousal support, and the division of property.  If your spouse receives a copy of your Petition and does not file a Response (FL-120) within the 30 days, the court assumes your spouse agrees with all of the court orders you are requesting in your Petition.  If you attach a proposed Judgment of Dissolution as an exhibit to your Petition and you state in your Petition that you are requesting the court issue your proposed judgment, and you then serve your spouse with the Petition and your spouse fails to file a Response within the 30 day period, then the presumption will be that your spouse read your Petition, including your proposed judgment, and did not have a problem with any aspect of your proposed judgment.   The court will then approve your proposed judgment as part of the default process.

If you don’t know how to draft a proposed Judgment of Dissolution, read the “Judgment” sections of this website.  For a true default case, you will use the Judicial Council forms approach to prepare your divorce judgment.

You don’t have to attach a proposed Judgment of Dissolution to your Petition (FL-100).  If you are not going to attach a proposed judgment to your Petition, then, when you fill out the Petition, put in as much information as you can about what you want your judgment to include.  Fill out and attach to your Petition the child custody forms that you want which are listed in section 6(c) of the FL-100.  For section 9, fill out and attach a separate property declaration (FL-160) listing all of your separate property.  For section 10 of the Petition, fill out and attach a community property declaration (FL-160).   All of these forms are contained in our Court Forms Database which you can access by clicking the “Court Forms” button on the navigation bar. The more information you include or attach to your Petition (FL-100), the more your spouse will be on notice as to what you want the court to order, and the more likely it is that your default judgment will withstand a future motion to set it aside.

You don’t want there to be any inconsistencies between what you ask for in your Petition and the judgment of dissolution you later ask the court to sign.  For example, assume you filled out the Petition (FL-100), did not attach a proposed judgment of dissolution, and in your Petition you did not check the box asking for an award of spousal support.  You then serve your spouse with the Summons and Petition and your spouse does not file a Response within the 30 days.  You take your spouse’s default.  You then obtain a judgment of dissolution that awards you spousal support.  Your spouse will be able to set aside the judgment of dissolution, or at least the part of the judgment that awards you spousal support, because the judgment you obtained includes orders that you did not request in your Petition.

Perhaps you did not know in advance that your spouse would not file a Response or cooperate with you after you served the Summons and Petition.  Your Petition is a bit vague as to what you are requesting in terms of a judgment.  What do you do?  One option is to file an amended Petition, with more detailed requests or with a proposed Judgment of Dissolution attached as an exhibit, and then serve your spouse with the amended Petition.  When your spouse again fails to file a Response in the 30 day period, then take your spouse’s default.  The court will approve your proposed judgment (assuming it is all in order) because your spouse was on notice as to the exact judgment your Petition was requesting the court to issue and your spouse elected to not respond.  An amended Petition is the same as the regular Petition (FL-100).  You just check the box that says “Amended” on page 1 that is located in the caption section of the Petition.  If you file an Amended Petition, you don’t need to pay another filing fee.

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