How to proceed in Default case with Agreement

#1

HI, I plan on filing final documents in my divorce process on Nov 15th, so I hope you can answer some questions that I have. My spouse was served the FL 100, FL 110 and FL 105 on Oct 15th and FL 115 was filed. I have since filed FL 150 and FL 141, after he was served FL 142, FL 150 and FL 140. We have a Marital Settlement Agreement signed and notarized on Feb 7 2018. Questions:
1.)My spouse has not filed a response or any other forms, and tells me he’s not going to. Am I correct to proceed by filing FL165, FL170, FL180 and FL190? Will final disclosures then be waived?
2.)Do I really need to file FL 341 when the MSA already addresses issues of custody and visitation? It states I will retain full custody of our daughter and “her wishes in regards to visitation will be respected”. She will be graduating high school and turning 18 in 2020. We have agreed that visitation will not be forced, and that it can be arranged flexibly between her and her father, as long as she’s agreeable.
3.) The MSA states child support will be voluntary, not mandated. Will the court order child support anyway?
4.) On the judgment, can I request the final date, or do I leave that blank?
5.) If I request to restore my maiden name, am I obligated to change it, or can I just reserve the ability to do so later?
I really appreciate your insight and any advise, and suggestions that you can offer. Thank you.

#2

1.) Yes, those are some of the correct forms. There MAY be additional forms depending on your specific county of filing.

2.) It depends on the county of filing and whether or not your MSA includes the mandatory language. You can always attach FL-341 and then state on the form “See attached Marital Settlement Agreement incorporated herein” (or some kind of similar language).

3.) No; however, some counties will require you to declare what the correct amount of child support should be under state guidelines even if you agree to another amount.

4.) If the date is AFTER the date of submission, typically yes. You cannot pick a date before the date of submission in your situation.

5.) No one is going to force you to change your name on a set timeline if you request to restore your maiden name. Alternatively, if you’re unsure, you can leave it blank on the judgment and file a request to do so if you change your mind.

Good luck!

#3

Thank you Cristin, In regards to #1) If I file the forms and Contra Costa County requires additional forms can I submit them later? Will they notify me if they need something additional? Or, would they just schedule a court date to resolve what’s missing? I would file FL 144 except since my spouse hasn’t completed any disclosures I don’t think it’s applicable, right?
Thanks again, I appreciate your assistance.

#4

If the Judgment is rejected, you will receive a notice, along with a list of items to correct.

A default with agreement does NOT require FL-144.

#5

Hi Cristin, Thank you for your reply. That is helpful information. I got my husband to sign a FL 130, but I haven’t filed it yet. Do you think that will be helpful? He tells me he doesn’t want to go to court.

#6

This checklist should help you out:

#7

Hi Cristin, That checklist was very helpful. I didn’t file the FL 130 because it apparently was unnecessary and would have cost another $435.00 fee. Hopefully I have fulfilled all the requirements and the judgement will be accepted as filed. Thank you very much for all your help.

#8

Hello, we have an unusual circumstance. Forms filed are the petition, summons and proof of service. It has been more than 30 days and the Respondent has not responded, we are planning to go forward with the default with no writtend agreement. Petitioner has not filed a FL 150 and FL 141 If the petitioner has been in prison for the last 18 years do they still have to file these forms? (expense and income and declaration of service?
Thank you for your guidance.

#9

Yes, the forms must still be filed.

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#10

I recently filed a default as well as all the forms that go with it. FL170, FL 180-FL190. I got a letter from the court stating "you may need to amend your petition due to omitting statistical facts (when married and when seperated). Does this mean i will have to refile a brand new petition which includes the missing information and reserve my estrange husband? as well as re file the request to enter default? I also heard I may have to ask the court for permission. Can you offer any guidance or answers. Any is appreciated. Thank you.

#11

Yes, you’ll need to file what is known as an “Amended Petition” and “Summons.” Assuming you have not yet amended your pleadings, you do NOT need the Court’s permission for the first amendment. Subsequent amendments will require the Court’s permission. You will then need to serve him again and wait an additional 30 days before taking his default again. You should strongly consider having someone look over your amended pleadings before filing them again, to make sure you have them complete and correct.

#12

Hi Cristin,

quick question. I am about to file for default with agreement. I have the 4 forms (FL-165, 170, 180 and 190) filled out. Will I need the signed and notarized MSA when filing those documents, or can I file them and submit the MSA some other day?

Thanks so much,
Chriss

#13

Hi Chriss,

You will want to attach your MSA to FL180 - that is what makes it a “complete” divorce judgment, and on page 2, you’ll check the applicable boxes for “settlement agreement, stipulation for judgment, etc.” While technically you can file them separately, it doesn’t make sense to do so.

#14

Thanks so much for the prompt response and additional information. Another question regarding pg 1 #3. I checked a) and added the date when my spouse signed the acknowledgement of receipt (I had the all the papers sent via USPS). That should be correct, right?

second question, pg. 2 letter I.
Do I check number (2) and (4), or just number (4)? My spouse and I have agreed that no-one is going to pay spousal support.

Thanks again!
Chriss

#15

  1. Yes, the date your spouse signed the Notice and Acknowledgment of Receipt is the date of service.

  2. I customarily do both. But that’s also because I address the termination in my attachment (MSA or stipulated Judgment). If it’s not part of your MSA, you would only check #2.

#16

Now I have another quick question. Since we do have the MSA, will I still have to go through all the default with agreement steps (FL165,170,180,190…), or can we just submit the MSA and receive the final judgement based on that?

Thanks so much,
Chriss

#17

The MSA is NOT a divorce judgment. You will need to go through all of the proper steps to obtain a final judgment.

#18

Hi Cristin,

My spouse and I were also in an agreement and had drafted an MSA (a few weeks after I had filed for divorce and she acknowledged the receipt of the paperwork). Meanwhile we sold our house, sold the vacation home and split the money from the sales evenly. We pretty much got rid of everything or divided it appropriately. We both live in separate rentals now. Both of us have our own individual accounts where the paychecks drop in.
Besides two cars (bank owned) we don’t own anything together anymore. Credit Cards and loans have been paid off as well. However, now my spouse decided not to sign the MSA anymore.
I will have to proceed with a default without agreement.

My questions are in regards to the FL160. We obviously did have a lot of items listed prior to filing and her acknowledging that I want a divorce. Now, at the time of filing for default, we don’t own or owe anything together anymore. Also, I don’t have access to her bank accounts or credit cards, so I can’t say anything about her savings and debts.
Do I leave those areas all blank, or do I just put in my very own data and the court will get my spouse’s financial information directly from her to make a final judgement?

Thank you so much for your help!
Best,
Hans

#19

Hi Hans,

If I understand correctly, you filed for divorce, reached a verbal agreement with your spouse, and then you divided assets in accordance with your agreement, but you did not sign a written agreement or do your financial disclosures.

If that is the case, you can certainly try for a default judgment, but you have to remember that there is no agreement. That means that you have to look at things as of date of separation and prepare your paperwork accordingly. You may not presently own anything together, but as of date of separation, you certainly did. Your FL-160 should reflect what existed as of separation, as well as what you did with the division of the assets, as I assume that is also your proposal for division and what you want the court to order.

#20

Cristin,

Thanks so much for the prompt response. This information is very helpful!