“The 2 ways that a default can occur are: when a responding party fails to appear at a court hearing after being appropriately and timely noticed; or when a responding party fails to respond to the paperwork after being appropriately and timely served.
There are 2 kinds of judgment defaults: A complete, or true, default when the responding party does not respond to the Petition; and a default with an agreement in which the parties make an agreement (MSA) but the respondent still does not file a Response (form FL-120). [FC 2338.5.]
Default rules and procedures: If both parties have filed initial pleadings (Petition and Response), no default may be entered. [CRC Rule 5.76.] Pursuant to the Summons, the respondent has thirty (30) days to respond to the Petition. If no Response is filed within 30 days after service was effected, the petitioner can file the default paperwork. Local rules determine whether a default has to be “proven up.” No default may be entered in any proceeding unless a request has been completed on a Request to Enter Default (form FL-165) and filed with the court by the petitioner. [CRC Rule 5.401.]
The judgment default process: The Petitioner must wait 30 days after service of the Summons and Petition; After 30 days, the Petitioner must file: FL-165 Request to Enter Default, FL-170 Declaration for Default or Uncontested Dissolution, FL-180 Judgment and Proposed Judgment, FL-190 Notice of Entry of Judgment. In some counties, the petitioner or the petitioner’s attorney must appear in court to prove up the default. The local rules of the county will provide whether or not a prove up is necessary.
Setting aside the default: Pursuant to FC 2122, a default may be set aside within one year after the judgment has [been] rendered for actual fraud, perjury, duress and mental incapacity. Pursuant to CCP 473(b), a request to set aside a default must be filed within six months after the judgment was entered; and may not be set aside because it was inequitable when made or because the division of assets or liabilities was divided inequitably.”
[LW Greenberg, California Family Law]
