Simple Divorce - How to Get One by Default

Woman being serced divorce papersThe easiest way to get a simple divorce in California is by default. This means that your spouse or partner doesn't respond when served with divorce papers. This article will explain how a default divorce works in California.

In our legal system, any lawsuit is a struggle between two contestants conducted before an impartial authority, the judge. It seems obvious (doesn't it?) that you can't have a fair contest if the other side doesn't know one is going on. So the law requires that the person initiating the divorce serve notice on the other party.

The essence of notice is that your spouse or partner is given or sent a Summons and a copy of your Petition and can therefore be presumed to know what the suit is about, what you want, and when and where the contest is to be held. The court cannot act in your case unless you properly notify your spouse or partner of the lawsuit.

The notice requirement is especially important in simple divorce cases that go by default, which is what happens when your spouse or partner gets notice and doesn't file a Response. Your spouse or partner has seen the Petition, so not showing up is like saying that you can have your way. Subject to the judge's approval, that is what you will get.

Since getting a simple divorce by default is contingent on your serving papers on your spouse, and filing proof of service, the rest of this article will give a brief overview of how to do this in California.

Who can serve? Papers must be served by someone who is at least 18 years old and not a party to the action, so neither spouse can do it, but almost anyone else can. A relative can do it, but it would look better if the person were not related.

You can hire a professional process server (see your local yellow pages) but don't use a Sheriff, Marshal, or Constable if you're in a hurry, or if it might take diligence to find your spouse.

Being a citizen is not a requirement. Each time papers are served, the person who does it must sign a Proof of Service form so you can prove when, where, how, and by whom it was done.

Who gets served? For a simple divorce, and all other types of California divorces, the Summons and Petition set is always served directly on the spouse. For everything else, papers are always served on the "attorney of record." Look on the caption of the most recent court document you received (if any) from your spouse and the name that appears there is the "attorney of record." If you were never served with court documents, keep serving your spouse directly. Just because your Ex consulted an attorney does not make that attorney "of record" unless his/her name appears on a court document that is served on you. Whoever is "of record," your spouse or your spouse's attorney, you must use that name and address on all your Proofs of Service, exactly as it appears in the captions.

Order of events. For the first step in a simple divorce--the Summons, Petition, and related documents--you need to file your papers first, then have the papers served, then file your Proof of Service.

Choosing the method of service. The method of service you can use will depend on where your spouse is. If your spouse is located inside California you can use personal service or Service by Notice and Acknowledgment.

If your spouse is located outside California, you can use either of the above methods, or service by certified or registered mail.

If your spouse cannot be located anywhere, the service of process becomes much more difficult. You are required to try very hard to locate your spouse. Get the most recent address you can and try serving papers by mail--maybe they will get through.

If that fails, try to contact relatives and friends who might know where your spouse is, the last-known employer, and the County Tax Assessor. If nothing works, then you can proceed by Publication of Summons for your simple divorce.

Proof of Service
A Proof of Service is a declaration swearing that certain steps were carried out to serve papers on the other side. This is so the court is certain that notice of the action was actually given correctly. After serving your spouse with the Summons and Petition you need to file a form with the court called Proof of Service of Summons.

In California, the Summons states that the recipient has 30 calendar days to respond by filing a Response according to rules of court. If your spouse doesn't file a Response on time, then the court can make orders regarding your marriage, and you will end up with a simple divorce by default.

To learn more about how you can get a simple divorce in California, or have an easy divorce if your spouse does respond to service of divorce papers, go to Simple Divorce.

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