True Default Case and No Agreement

#1

More than thirty days have passed since serving my wife and she has failed to respond. However, NOW she wants to go to a mediator and talk about money, and about what she believes is fair…specifically, the house and what it’s value has increased to during the time of our marriage and believes she should be entitled to half of that amount.

Since she has defaulted I’m thinking she doesn’t have a leg to stand on in terms of asking for any kind of monetary judgment (and after what she did she certainly doesn’t deserve it…of course that’s just my “opinion”).
Can I now be confident in going ahead and filing the remaining forms fl 165, fl 170, fl 180, fl 190 ASAP and be done with this?

Would the court still come to a judgment that I owe her anything?

Would she be able to overturn the default somehow in the future?

FACTS:
-MARRIED 3YRS 5 MONTHS
-I MAKE ABOUT TWICE AS MUCH AS SHE DOES.
-NO CHILDREN
-HOUSE WAS PURCHASED BY ME BEFORE WE WERE MARRIED, AND I AM THE ONLY PERSON ON THE TITLE.

#2

You technically CAN submit a true default judgment, as you have met the legal requirements to move forward with the divorce process (assuming you’ve filed and served your preliminary declaration of disclosure). That said, the better question is whether or not you SHOULD file a true default judgment.

A true default judgment is limited in two regards:

  1. The Judge cannot grant anything that is not specifically requested in the Petition. On the rare occasion that I do submit true default judgments, my judgment will look identical to my requested relief in my Petition.

  2. The Judge is strictly bound by the law. For example, spousal support/alimony is presumed to be for one-half the length of the marriage. If she were to request the judge to issue spousal support, I believe she would receive it based on her making half as much as you.
    Very few judges would find that a termination of the issue is appropriate in a default judgment until half the length of the marriage has passed. The mortgage payments during the marriage absolutely DO create a small interest in the home for the community, and she would, under the law, be entitled to some of the equity, though it’s likely not much.

To answer your other questions:

  • It sounds like under the law, you do owe her “something,” though without more information, I couldn’t tell you what.

  • Yes, there is a 6 month window after entry of judgment, during which it is fairly easy to “overturn” or, the proper legal term, “set aside” the judgment.

#3

Thank you very much for your answers, I find your website extremely helpful.
If possible I’m hoping you can elaborate on a few things if I provide reasonably accurate numbers.

  1. first and foremost if I proceed with the default without agreement path And I specifically said in the petition that the house is mine, wouldn’t the judge grant that since she didn’t respond? The house increased in value by 154k during the term of the marriage (according to Zillow which may not be entirely accurate).
    Would she be entitled to 50% of that amount? Or some smaller amount? How is this calculated?
    Additionally if the judge awarded support for half the term of the marriage and she makes around 50k and I make around 100k what would be the approximate amount of money the judge could award her in spousal support?
    I guess I’m trying to figure out if the default with an agreement will be more or less painful than proceeding ahead without an agreement and be at the mercy of the judge. I know that she thinks she is entitled to 50% of the 154k that the home increased in value to but I’m unsure if this is even true since she defaulted. So I’m trying to run some numbers to see what is the best option here.
    Thanks.
#4

  1. The judge is bound by the law, which means that you can’t get something just because you ask for it (though that is the first requirement in a default judgment). The other part is that the judge can only grant your request if it is supported by law. Her portion of the house is determined by something called a “Moore Marsden” analysis, which requires a lot more information than you’ve provided. In short though, she’s NOT entitled to 50%.

  2. I have no way of discerning an amount of spousal support, but it appears appropriate in this case. You could probably ask the judge to RESERVE on the issue until either party’s death, her remarriage, further court order, or the date when half the length of the marriage is, whichever occurs first. That means that it’s left open-ended. That’s not a perfect solution, but it does require her to actually ask for it.

I should also clarify that your spouse has NOT defaulted. While she’s past the 30 day response time, you have not taken her default. So while she could be defaulted at any time, she is not.

#5

would you be kind enough to provide me with a true Moore Marsden Calculation Formula? I search online and find variations. I just want the true formula to plug in the numbers and figure it out. Thank You!

#6
  1. Purchase Price
  2. Amount of Down Payment
  3. Amount of payments on loan principal made with separate funds
  4. Fair Market value at date of marriage
  5. Amount of payments on loan principal made with community funds
  6. Fair market value at time of division
  7. Subtract line 1 from line 4
  8. Subtract line 4 from line 6
  9. Divide line 5 by line 1
  10. Multiply line 8 by line 9
  11. Subtract line 10 from line 8
  12. Add lines 2, 3, 7, and 11
  13. Add lines 5 and 10
#7

Hi Cristin:

You’re very helpful, nd thank you for being resourceful!

I’ve one question.

In amicable divorce, if the non petitioning spouse who lives overseas agrees to waive personal service of process, what form/paper (if there’s standard form) or Declaration had to be completed? How does the declaring spouse overseas execute the waiver? Asked two California family law attorneys, including at self-help, they’re not sure.

#8

You can serve with form FL-117 for international service; however, if the responding spouse does not sign and return the document, you’ll have to arrange for proper personal international service.