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Can there be a written agreement in a default divorce case?

When ending a marriage in a California, the line between a default case and one in which there is an agreement between the parties might appear to contradict each other. However, it is possible for there to be an agreement in such a circumstance. Understanding how this can be done at the end of a marriage is key as there are certain steps that must be completed for the default case with written agreement to be considered valid.

When the complainant spouse serves the respondent spouse with a petition for divorce and there was no response but an agreement was negotiated, there can be a default with agreement. The case defaults when more than 30 days go by between the serving of the petition and summons and there was no response -- a default -- and the couple came to a written agreement regarding all issues in the case. This can include the division or property, who gets custody of children, what the visitation rights will be and how much support will be paid.

It is required that the spouse who filed the petition do the following: write the agreement, fill out the final forms, and complete a final declaration of disclosure. It is important to remember there are separate forms for child support, property division, child custody and spousal support. All must be completed. Once the agreement is finished, there must be a final declaration of disclosure. There are exceptions as to when this is necessary. It is not needed if: the couple agrees in writing to waive it; there is a court order waiving the receipt of the declaration of disclosure; or the spouse did not respond to the petition and did not sign and notarize the written agreement.

Not every case has divorce legal issues that make it an endless dispute between the parties with no end in sight. Even if the respondent did not answer the petition for divorce, it remains possible to have an agreement in a case that is technically a "default" case.

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John T. Chamberlin, Attorney at Law
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