A divorce is never easy, even under the best of circumstances when couples agree to part amicably in an uncontested divorce, but when one spouse purposely avoids the divorce papers the other attempts to serve, the process becomes distressing right from the start. If you’re seeking a divorce and your spouse has dodged the divorce papers, you may be wondering what happens next and what your options are for moving forward.
Why Do Some Spouses Avoid Divorce Papers?
Each divorce is unique just as each marriage is different, but every divorce begins with one person petitioning for divorce while the other spouse is a respondent to the petition. After one spouse files for divorce, the next step is for the papers to be legally served to the other spouse who then signs the document acknowledging that they were served. After that, California has a six-month waiting period before the divorce hearing, during which time both parties negotiate the division of marital assets and debts, as well as the arrangements for sharing child custody and determining child support according to California’s child support formula.
Some respondents may avoid the service of divorce papers for any of the following reasons:
- They wish to save the marriage
- They have grievances against the spouse and avoid the papers to make things more difficult
- They seek to avoid the division of property and assets
- They don’t want to pay child support
- They don’t want to split or share custody of their children
Regardless of the reason for avoiding the divorce papers, when the responding spouse successfully evades a server, the divorce process takes a different turn.
What Happens After Several Failed Attempts to Serve the Paperwork?
Once several attempts at serving fail, the process server must sign an affidavit showing they applied due diligence in their tries at serving the papers. In that case, the petitioning spouse goes to court to tell the judge that they’ve tried unsuccessfully to serve papers. The judge may authorize other methods to try again to serve the documents to the reluctant spouse such as:
- Sending the papers through certified mail
- Having a friend or family member serve the papers
- Hiring a private detective to locate the respondent and serve the papers
- Leaving the petition on the respondent’s doorstep
- Publishing the divorce petition through a bulletin at the courthouse or in the local newspaper
If none of the further attempts succeed or if the respondent fails to respond within 30 days, the divorce moves into a divorce by default.
What is a Default Divorce in California?
If due diligence fails and the spouse successfully avoids the attempts to serve the papers, the process moves into a default divorce process. In this case, the respondent has essentially given up their rights to negotiate the separation of marital assets and any issues of child custody and support orders. Your divorce attorney will walk you through the default divorce process which includes the following:
- Completing the Declaration of Default Divorce forms
- Completing the Request to Enter a Default Divorce form
- Completing a Divorce Judgment form
- Completing a Notice of Entry of Judgment form
In cases of marriages without children and without the need for spousal support, a default divorce can typically proceed to finalization without the need for a court appearance. If there are questions regarding custody and support, the petitioner and their lawyer will meet with the judge in a divorce default hearing and the judge will decide on these issues without input or contest from the spouse who failed to respond to the petition.
Can My Ex-Spouse Contest After a Default Divorce?
While in some ways, a divorce by default may seem easier than a hotly contested divorce, it is legal for the ex-spouse to later file motions for modification of any orders, including spousal support, child support, and child custody.
An experienced California family attorney can help you understand your rights and obligations when a spouse avoids the service of divorce papers.