After Service of Summons and Petition

After serving the Summons and Petition on your spouse, they have 30 days within which to file and serve their Response. If they do not file their Response within 30 days, you have the right to file a form Request for Entry of Default. When the Clerk of Court receives your Request for Entry of Default, they will verify your spouse has not filed a Response and if they have not they will enter default against the opposing party. And you've won, it's that simple. I'm just kidding, its not really.

Often, entering default against the opposing party as soon as possible is a waste of time. I am never quick to do so. The reason is that California Code of Civil Procedure section 473 provides liberal grounds to set aside a default on various grounds, including "oops I forgot." If you rush to the Clerk's office and file a Request to Enter Default, the opposing party will have up to 6 months to have the default set aside almost as easily as you had it entered.

Even once default is entered, you will have to set the matter for a "default hearing", at which the Judge will make certain the terms of the proposed judgment you are requesting provides for a fair and equitable distribution of the marital estate. That hearing will be set approximately a month away, and you will still have to provide your spouse notice of the hearing. Often, your spouse will show up and oppose entry of a default judgment and the Court will give him or her additional time within which to file a Response and appear in the matter.

This does not mean requesting entry of default is never appropriate. But it should be reserved for situations in which it is clear your spouse has no interest in participating in the dissolution proceedings. It is not intended as punishment for failing to strictly comply with time requirements.

Rather than immediately requesting entry of default against a spouse that does not promptly file a Response, consider filing a motion for custody, support, or other matter that is not likely to be ignored. Often the filing of such a motion will compel a reluctant spouse to get off the couch, because failure to do so will result in orders being granted in your favor.

On the other hand, there are times when requesting entry of default is entirely appropriate. If your spouse is incarcerated they may not be able to file a Response or appear. If there are no significant marital assets, a spouse may not care to appear and contest the proceeding. I have even had situations where a spouse wouldn't come near the courthouse because they had warrants for their arrest and were afraid the deputy sheriff bailiff might check for criminal warrants (they do, and they will be taken out of the courtroom in handcuffs after the hearing).


So, while many people think the opposing party's failure to timely file a Response results in victory, it just isn't the case. Besides, there are no victories in family law.