In divorce, an FL-165 is a Request to Enter Default. Through an FL-165, a spouse loses their chance to file a response. In other words, filing an FL- 165 form means the other spouse has no response to your divorce petition, which in effect allows you to proceed without them, and you can receive a default judgment. In this article, we will take a closer look at what an FL-165 form entails and how to properly fill it out.
What Is a Default Judgment?
A default judgment in divorce happens when one of the spouses fails to respond, giving the courts the authority to pass judgment on divorce. Should the spouse choose not to reply and ignore notices that they receive regarding divorce, that spouse shall find themselves effectively divorced.
After one spouse files for a divorce, the other must respond on time, usually 30 days after receiving the petition. Should the spouse, within the given deadline (30 days), intentionally neglect or ignore issuing a response, the petitioning partner has the right to proceed with the divorce with no interventions whatsoever from the other spouse.
What is FL-165?
When you file a divorce, a legal separation or a paternity action in family court, you then serve it to the other party, who has 30 days to file their response to the court and hand it back to you. At the end of 30 days, if they have not yet filed their response, you can continue to move on with your case.
That is to say, if you serve the documents to your spouse correctly and receive no response (given that you have filed your proof of service with the court), after 30 days, you can take their default and move forward in the case alone. The purpose of this action is so that people do not delay this matter forever.
Unless the petitioner files a request for an FL-165, the respondent can file a response anytime they find appropriate. For example, when you file petitions or disclosures, the legal clerks submit these documents immediately to court; however, in the case of the FL-165, the judgment clerk should receive the form in the courtroom, which could often take several weeks, leading to a court delay. Therefore, until you officially file your FL-165 in court, the other spouse has the right to file a response whenever they find it suitable.
How Do You Fill Out FL-165?
The “Request to Enter Default” box on the first page asks for your name, address, telephone number, fax number and email. If you fill in the form FL-165 yourself, you will have to write your name after “attorney for,” and you will also need to provide the county and courthouse’s address and the courthouse’s name where you are filing the form. The petitioner’s name is the same as the petitioner in the first filing, and it never changes; neither does the respondent’s name. The case number is necessary as well.
Under number 2, attorneys recommend that you attach the Income and Expense Declaration FL-150 and the Property Declaration form FL-160 to the form.
You have the right not to attach either of the declarations in the following cases:
- You filed the above documents previously, and no changes happened
- A written agreement settled every issue subject to disposition
- No issues concerning attorney costs and spousal or child support exist in the petition
- No request for property, money, expenses or attorney fees exist in the petition
- Division of community property issues do not exist
- The action is not a marital one but an aim to create a parental relationship
Following that, you only need to fill in the date, your name, and your signature to the right. If you gave notice by posting at the courthouse or publishing it in a newspaper, you have to mark ‘a’ under number 3, which is “Declaration.” However, if you gave notice to the other party personally, you have to mark ‘b’ and place the respondent’s last known address in the box.
Under Penalty of Perjury
Keep in mind that you are signing the form under penalty of perjury. If you sign the form and provide the wrong address, you would still be likely to get your default. However, the other side can come back later and overturn your default in front of a judge by showing that you gave the wrong address. Therefore, make sure to put in the correct address, date and signature to avoid such problems.
On the backside of the form, you will have to rewrite the name of the parties involved and the case number. If you ask the court to order the other party to pay your fees or costs, you have to fill in number four, “Memorandum of costs,” and provide all the necessary financial details. If you are not asking the other side to pay for your fees or costs, you have to mark ‘a,’ or “costs and disbursements are waived” and then sign at the bottom of the page.
The last section (Declaration of Non-military status) gives you the right to declare under penalty of perjury that the respondent does not serve in the U.S. military and does not have the right to benefit from the “servicemembers Civil Relief Act.”
Service members usually have special privileges, and the courts serve them differently, factoring in their timing when they are in deployment. They also have additional rights that a non-military person does not have. Therefore, if the respondent is not in the military, you can put the date, write your name and sign this section. If the respondent is in the service, you cannot sign this section.
Finally, you will have to file this form to the court with the FL-150 and FL-160 if necessary.
FL-165 instructions to abide by are the following:
- Fill in the FL-165 form.
- Keep three copies of the form attached to any other necessary documents (i.e., an Income and Expense Declaration FL-150 or a Property Declaration FL-160, if needed).
- File the above documents to the clerk of the court.
- When filing the form, provide the clerk with a stamped envelope with enough postage to your spouse at their last known address.
- Add the court’s address as the return address on the envelope.
- Whether you have a written agreement or not, when you file for a divorce and your spouse or partner does not file a response within 30 days, your divorce case becomes a default case. Following that, you have the right to file an FL-165 and proceed with the divorce without them.
- In case you do not know the location of your partner or spouse, you will be able to ask the court for permission to serve your divorce paperwork by publication or by posting.
- Serving by publication: you are entitled to publish the divorce documents in a generally circulated newspaper around the region you assume your spouse is staying. You will need to pay the newspaper to publish your documents. It is necessary to publish the documents at least once a week throughout four weeks.
- Serving by posting: your court clerk or server in the courthouse has the right to post the divorce documents visibly in a special place in the courthouse (known as court notices). Qualifying for a court fee waiver will allow you to serve by posting.
If you do not file the FL-165 and the court rejects your judgment, you will need to present your divorce judgment again, along with the request to enter the default form. To add, if you decide to delete your request for FL-165, the court will reject your form if less than 30 days have passed since the other party has received it.
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