True Default vs Default with Agreement in California Divorce

Two Kinds of Default — and They Work Very Differently

When a respondent doesn't file Form FL-120 (Response) within 30 days of being served, the petitioner can request a default. But "default" in California divorce actually describes two distinct paths, and confusing them leads to rejected judgment packages.

Default with agreement: The respondent didn't file a formal Response, but both spouses negotiated and signed a Marital Settlement Agreement (MSA). The respondent participated informally — they just didn't pay the $435 filing fee or submit the FL-120 to the court. This is the most common uncontested path in California.

True default: The respondent didn't file a Response and didn't cooperate at all. No MSA, no communication, no participation. The petitioner proceeds to judgment based entirely on what they requested in the original petition.

The distinction matters because the forms you file, the evidence you need, and what the judge can grant are different for each track.

Default with Agreement

This is the path most cooperative couples end up on when they want to save money. The respondent avoids the $435 filing fee by not filing a Response, while still participating in the settlement through a signed MSA.

How it works:

1. Petitioner files Form FL-100 and serves the respondent
2. The respondent receives the papers but doesn't file Form FL-120
3. Both spouses negotiate terms and sign a Marital Settlement Agreement
4. After the 30-day response window expires, the petitioner files Form FL-165 (Request to Enter Default)
5. The petitioner submits the judgment package with the MSA attached to Form FL-180

Critical requirement: The respondent's signature on the MSA must be notarized in a default-with-agreement case. This is because the respondent never made a general appearance in the case (they didn't file a Response), so the notarized signature serves as verification that they're voluntarily agreeing to the terms. Skip the notary and the clerk returns the entire package.

What the judge reviews: The judge checks that the MSA terms are consistent with what was requested in the petition, that financial disclosures were completed, and that the agreement is fair on its face. For cases with children, the judge evaluates whether the custody and support terms serve the children's best interests.

The petitioner still completes and files their FL-141 (proof of service of financial disclosures). The respondent should also serve their preliminary disclosures on the petitioner and file their own FL-141, even though they didn't file a Response — this eliminates a common rejection point.

True Default

True default is the adversarial version. The respondent was served, didn't respond, and isn't participating. The petitioner carries the entire case burden alone.

How it works:

1. Petitioner files Form FL-100 and serves the respondent
2. The 30-day response window expires with no FL-120 filed
3. Petitioner files Form FL-165 (Request to Enter Default)
4. Petitioner completes financial disclosures unilaterally and files FL-141
5. Petitioner submits a proposed judgment (Form FL-180) based on the petition's requests
6. The judge reviews the proposed judgment — and may schedule a brief default hearing

The hearing question: In a default without agreement, the judge may want to hear from the petitioner before signing the judgment, especially if the case involves child custody, significant spousal support, or complex property division. This hearing is typically brief and procedural — the judge asks the petitioner to confirm the facts under oath and may ask clarifying questions about the proposed terms.

Limits on relief: In a true default, the judgment cannot grant more than what the petitioner originally requested in the FL-100 petition. If the petition didn't check the box for spousal support, the judgment can't include a support order. This is why it's worth being thorough when filling out the initial petition — checking a box to reserve jurisdiction over support (even if you don't want it now) preserves the option later.

Comparing the Two Paths

The FL-165 Request to Enter Default

Both paths start with Form FL-165 after the 30-day response window closes. This form tells the court that the respondent's time to respond has expired and you're requesting default status.

Some counties require you to file the FL-165 before submitting the judgment package — the clerk won't accept the FL-180 until the default is formally entered. Other counties let you submit the FL-165 with the judgment package as a single filing. Check your county's local rules or ask the clerk.

The FL-165 also asks whether you're requesting a default with or without a hearing. For default with agreement, you'll typically request no hearing because the MSA speaks for itself.

Timing and Strategy

Why couples choose default with agreement over filing a Response: Money. The respondent saves $435 by not filing the FL-120. The process is otherwise identical to an uncontested divorce with a Response — both parties cooperate, exchange disclosures, sign an MSA, and submit a consent judgment. The only extra step is getting the MSA notarized.

When true default is the only option: If your spouse has disappeared, refuses to communicate, or is actively avoiding participation, true default is your path. You'll need to prove service was properly completed (the FL-115 Proof of Service of Summons must be on file) and may need to prove diligent efforts to locate your spouse if you used substituted service or service by publication.

When to reconsider default altogether: If your spouse is engaging informally but hasn't filed a Response, encourage them to sign an MSA so you can proceed by default with agreement. A true default gives you less flexibility than a negotiated settlement — and if the judge has questions about the proposed terms, the hearing can add weeks or months to your timeline.

The California Divorce Filing Process Guide walks through both default paths with form-by-form instructions, including the notarization requirements and judgment assembly checklist that prevent clerk rejections.

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