Division of Community Property in a Default Judgment

• Publication year: 2021
• Author: Janet Frankel, CFLS

Division of Community Property in a Default Judgment

Janet Frankel, CFLS

Janet Frankel is the Child Support Commissioner in the Marin County Superior Court. Commissioner Frankel is a Certified Family Law Specialist and an Adjunct Professor at San Francisco Law School (Community Property Law and Mediation Law). Prior to her appointment to the bench, Commissioner Frankel had her own family law and mediation practice in San Francisco.

What happens to community property when a respondent fails to respond? Will a default judgment simply grant petitioner all of the relief requested? Are there restrictions regarding the division of community property in a default judgment?

Unless the parties agree in writing or on the record in open court, the court must divide all community property equally, or substantially equally.¹ If mathematical equality is not possible, the division should at least be "substantially equal."² In-kind division is preferred, but not required. "Where economic circumstances warrant, the court may award an [entire] asset of the community estate to one party ... to effect a substantially equal division of the community estate."³ Upon good cause shown that "the interests of justice require an unequal division," the court has the discretion to make an unequal division.⁴

Does the Family Code equal division requirement conflict with the Code of Civil Procedure in a default? The Family Code does not specifically address default proceedings or whether the equal division requirement applies to defaults; the Civil Procedure Code (CCP), however, does. The CCP provides that the "relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint...."⁵ The complaint must put the defendant on notice of each asset and debt to be awarded and assigned, and a default judgment that exceeds what is requested in the complaint is void. This is basic due process and certainly applies in dissolution matters.

The CCP further provides that, in a default, the court "shall hear the evidence" and then "shall render judgment in ... plaintiff's favor ... as appears by the evidence to be just."⁶ The CCP does not mention an equal division of community property. It does not mention community property at all.

Statutory construction requires that if multiple statutes apply to a situation, they should be construed in a way that gives full effect to all.⁷ This general rule of construction applies in family law proceedings where there is no direct conflict between the Family Code / Family Court Rules and the CCP.⁸ Here, there is no direct conflict because the CCP does not mention community property and the Family Code does not address default judgments.

This construction of the CCP in family law defaults appears in numerous cases. It reflects a clear understanding that the equal division requirement applies.

Unequal division of the community estate in a default proceeding would be error.⁹ In Badillo, the judgment was nonetheless upheld because husband was "10 years late in his appeal."¹⁰ Wife's petition listed the only community asset, the family residence, and requested it be divided "as provided by law."¹¹ Husband defaulted and the trial court awarded the entire residence to wife, with a payment due to husband that husband claimed was unequal.¹²

The court must divide equally upon notice. In Andresen, wife completed a standard form petition and property declaration. Wife listed the community property without values or a proposed division.¹³ Husband defaulted. Andresen affirmed...