The Difference Between A Default Judgment With & Without An Agreement

When an individual files a petition for a divorce and sends out the summons to the other party, either the former receives, or does not receive a response for the divorce action. If in the case that your partner does not file a response for your divorce action, the case is then termed as a default. A default case can further be subdivided into two broad categories namely a default with agreement and a default without agreement.

Default with agreement

Now the first category referred to as the default with agreement is the situation wherein your spouse or domestic partner does not file for a response to your divorce petition, but both of you have a mutually agreed upon written agreement that stipulates a set of instructions regarding the division of your debts and property and other child related issues such as custody visitation and support. It also implies that the couple will be indulging in all the legal formalities and paperwork, without having to pay a filing fee. A major advantage of this type of case is that both your partner and you will be in agreement with the various aspects of a divorce and will have minimum conflicts. The court will not be getting involved into any matter regarding the distribution of your property and debts, and will stick to the terms stipulated in your agreement. 

Default without agreement

The default without agreement, often referred to as a true default case occurs in a situation wherein, neither your spouse responds to your divorce petition, nor you two have any written agreement for property division and custody related issues. In such a scenario, the court of law has the last word in deciding upon your property distribution. The court will order an equal division of all marital assets or community property and debts acquired by the couple within the duration of their marriage. In such a situation the divorcing parties do not have any say regarding the division and distribution of property and debts.  There are several cases, wherein there are major disagreements regarding the fairness of such a division ordered by the court. For example, if a working spouse wishes to keep the community pension and the other partner too agrees upon it, the couple cannot get their request enforced in a court of law, since the law still requires them to split the pension in two halves.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.