Laws governing marriage and divorce vary from state to state. In California, if one spouse decides to file for divorce, the court has the power to end the marriage, even if the other spouse does not agree or want to get divorced. Accordingly, the party served with divorce papers may respond in several ways: 1) by doing nothing or failing to respond, which is considered a “true default” and means that the spouse filing the petition will get everything he or she is asking for; 2) by doing nothing, but with an agreement setting forth the terms of the divorce; 3) filing a response and reaching an agreement, also known as an “uncontested” divorce; or 4) filing a response, but disagreeing with the spouse’s requests, or a “contested” divorce. Whether you are filing for divorce or responding to a petition, you are strongly encouraged to contact a local San Diego family law attorney as early as possible. The form of the petition and response can significantly affect your rights throughout the proceedings.
A recent California case illustrates some of the complications that can arise when one spouse fails to respond to a divorce petition. Here, the husband filed for divorce in October 2011, seeking joint custody of the couple’s two children. The wife did not file a response, although she was present in the courtroom during the proceeding, and the court granted the divorce via a default judgment in February 2013. As part of the dissolution of marriage, the court also granted the couple joint legal custody and gave each parent approximately 50% of physical custody.
In June 2014, the wife filed a petition to modify the joint custody arrangement. The husband opposed the modification and filed a separate petition, arguing that since the divorce was granted by a default judgment against the wife, she lacked standing to seek a modification of that judgment. He also argued that the court did not have jurisdiction to decide the petition. The trial court denied the husband’s petition, concluding that the wife had standing and the court had jurisdiction to hear the modification request, and it ordered the parties to attend a parenting plan assessment. The husband appealed the court’s ruling, arguing that the default judgment against the wife prohibits her from requesting modification of the joint custody order, without first getting relief from the default judgment.
At the outset, the court of appeals explained that, although this particular order is not typically “appealable,” the court determined that it was in the interests of “judicial economy” to decide the case on its merits. The court then disagreed with the husband’s argument, pointing out that the court’s primary concern is the general welfare and well-being of the children. The Family Code authorizes courts to order modifications when those changes will benefit the children. According to the court, Section 3087 of the Family Code gives parents the authority to seek modifications of a child custody arrangement, and nothing in the statute indicates that it does not apply in a divorce case where a default judgment was granted.
Therefore, the court held that the wife had standing under Section 3087 to seek a modification of the child custody judgment, even thought it was a default judgment against her. This case is a good example of the need to be sure that you comply with all applicable laws and procedural requirements in any family law proceeding. Roy M. Doppelt is a seasoned divorce attorney who has more than 20 years of experience assisting clients in San Diego and throughout the State of California with all of their family law needs. To schedule a free confidential consultation, call Doppelt and Forney, APLC toll-free at (800) ROY IS IT (769-4748) or contact us through the law firm’s website.
Related Blog Posts: