Check out some similar questions!

chatty575 · Mar 23, 2009, 05:21 PM

In California my friend had a trail default prove up hearing is he going to be divorced

cdad · Mar 23, 2009, 05:45 PM

What exactly is the hearing about ? What default judgement was entered.

chatty575 · Mar 23, 2009, 06:14 PM

Divorce and it went to default can the judge grant divorce and the child support be separate

ScottGem · Mar 23, 2009, 06:25 PM

If he doesn't show up for a hearing, yes the judge can award the other party whatever they ask for.

cadillac59 · Mar 23, 2009, 10:37 PM

When a person who is served a Petition for Dissolution or legal separation does not respond in the time permitted by law (30 days) the Petitioner may request entry of default and default judgment. It's a two-step process. The clerk enters the default, which prevents the Respondent from filing a Response or otherwise appearing in the action. Then a judge may enter a default judgment (that is what ends the case - the court terminates marital status, awards child custody, child and spousal support, divides property, allocates debt, awards attorney fees, etc.)

Now, in California you are suppose to apply for a default judgment by declaration first-- you don't have to appear in court, just send in the paperwork (which is NOT easy to complete properly if you have a complicated marital estate). The judge has the option of rejecting the declaration and requiring the case be set for a default prove-up hearing (the procedure for this can vary from county to county, so you have to check the Local Rules). If the case is set for a prove-up, you are notified and this hearing is the trial on your case. The other side is not notified of the hearing and cannot be heard, even if he or she does show up and try to contest anything (remember the person has defaulted and is out of the case). The judge takes testimony, and evidence and enters a judgment. Even in a default, the court is REQUIRED to equally divide the community property (unless the total value is under $5,000) and equally divide the community debt (unless it is a "negative assets case" in which total liabilities exceed total assets--in such a situation the court can allocate the excess debt in any fashion it sees fit). Just because it is a default, it is not a "winner takes all" outcome! No, no, no. Not in California.

That's about it.

cadillac59 · Mar 23, 2009, 10:49 PM

Originally Posted by chatty575

in california my friend had a trail default prove up hearing is he going to be divorced

It depends on what happened at the default prove-up hearing. Did your friend put on the jurisdictional facts (to terminate status)? Was any evidence presented? You still have to prove your case with evidence, even in a default. Usually in cases of self-represented persons the judge will guide the person through the process as much as possible and at least terminate status. Judges have to because pro pers show up and don't know what they are doing. They sit there unprepared with blank looks on their faces typically.

If you are curious you can ask your friend what happened or order a copy of the transcript. Or there might be a minute order you can get a copy of.

ScottGem · Mar 24, 2009, 06:39 AM

Comments on this post
cadillac59 disagrees: It California this is not permitted. Equal division is still required (see more detailed answer below)

Mea culpa. What I meant to say was:
If he doesn't show up for a hearing, yes the judge can award the other party whatever they ask for as long as its according to the law.
I thought it was obvious that a judge would not rule against prevailing law.

cadillac59 · Mar 24, 2009, 09:52 AM

Originally Posted by ScottGem

Comments on this post
cadillac59 disagrees: It California this is not permitted. Equal division is still required (see more detailed answer below)

Mea culpa. What I meant to say was:
If he doesn't show up for a hearing, yes the judge can award the other party whatever they ask for as long as its according to the law.
I thought it was obvious that a judge would not rule against prevailing law.

Yes, with that qualification you are correct.

This is sometimes an area of confusion because in other civil default cases the result in often very slanted in favor of a plaintiff. Take a car accident for example. If you go in on your default prove-up and ask for $20,000 of pain and suffering on your $3,000 chiropractic bills most judges will say, "no problem, here ya go." Yet everyone knows there is no way any jury would every award something like that on those facts.

Of course, you wouldn't expect a defaulting party (respondent or defendant) to show up at a default hearing and even if he /she did the court wouldn't listen to him.