California Family Code § 2336: Evidence Required for Default Divorce Judgments

Plain-Language Summary

Section 2336 ensures that when one spouse fails to respond to a divorce or legal separation petition, the court cannot grant the divorce automatically or based only on a referee’s report. Instead, the petitioner must present evidence supporting the grounds for the divorce. This evidence is usually submitted by written declaration (affidavit), and must include key financial information. In cases with minor children, each affidavit must estimate each spouse’s monthly income or explain lack of knowledge. If community property is involved, the affidavit must estimate the value of assets and debts proposed to each party (or a formal property declaration must be filed). The court will generally require the person who filed the declaration to appear only if there is a possibility of reconciliation, if a proposed custody or support order seems improper, or if the judge deems a live appearance needed in the interests of justice. Section 2336 is meant to make sure default divorces are supported by factual proof, not just the non-responding party’s silence.

Real-World Examples

After one spouse files for divorce, the other doesn’t respond. The filing spouse brings a “default” judgment. Under §2336, before the judge can finalize the divorce, the filer must submit written proof of why the marriage ended (usually by affidavit). For example, they might swear under oath to facts showing irreconcilable differences, and must list each person’s income. The judge reviews these declarations and may require additional evidence or testimony before granting the divorce.
A divorcing couple has minor children. The husband never answered the divorce petition, so the wife seeks a default judgment. Under §2336, each affidavit offered must include an estimate of her income and his income (or state why she doesn’t know his income). The wife also lists community debts and assets. Only if concerns arise (like potential reconciliation or unfair support terms) will the court require her to appear in person; otherwise, the judge rules on the declarations.
The parties have community property (a house, bank accounts, and debts). The husband did not contest the divorce petition, so the wife files a default judgment. Under §2336, in her proof she must give an estimate of the value of the house and debts for each spouse or file a detailed property declaration. If she fails to provide adequate information, the judge could delay the judgment or require additional evidence to ensure a fair outcome.

Published Case Law on § 2336

Bijan Boutiques, LLC v. Isong, 104 Cal.App.5th 132 (2024) – The Court of Appeal upheld a default divorce judgment while emphasizing that §2336 “expressly prohibits the court from basing its judgment on a party’s default,” instead requiring proof by affidavit. The court noted that the petitioner’s declarations must include estimates of income and of community assets and debts as specified in §2336, so the judge makes an informed division of property.
In re Marriage of Fan (2006) – The Court of Appeal described §2336 in detail, quoting it to explain the proof needed for a default divorce. The opinion restated that “no judgment of dissolution… may be granted upon the default of one of the parties” without requiring affidavits of the grounds and, in cases with children, income estimates, and with community estate, property value estimates. The court applied these requirements in affirming the default judgment once the necessary affidavits were in order.
Elkins v. Superior Court, 41 Cal.4th 1337 (2007) – The California Supreme Court noted §2336 as a specific statutory exception to the normal hearsay rules in divorce trials. It explained that §2336 requires affidavits and supporting evidence in default marital dissolution cases, but this exception does not extend to contested trials. In other words, while default cases can rely on written declarations (as §2336 allows), contested divorces generally require live testimony.

Full Text of California Family Code § 2336

Section 2336. (a) No judgment of dissolution or of legal separation of the parties may be granted upon the default of one of the parties or upon a statement or finding of fact made by a referee; but the court shall, in addition to the statement or finding of the referee, require proof of the grounds alleged, and the proof, if not taken before the court, shall be by affidavit. In all cases where there are minor children of the parties, each affidavit or offer of proof shall include an estimate by the declarant or affiant of the monthly gross income of each party. If the declarant or affiant has no knowledge of the estimated monthly income of a party, the declarant or affiant shall state why he or she has no knowledge. In all cases where there is a community estate, each affidavit or offer of proof shall include an estimate of the value of the assets and the debts the declarant or affiant proposes to be distributed to each party, unless the declarant or affiant has filed, or concurrently files, a complete and accurate property declaration with the court.

(b) If the proof is by affidavit, the personal appearance of the affiant is required only when it appears to the court that any of the following circumstances exist: (1) Reconciliation of the parties is reasonably possible. (2) A proposed child custody order is not in the best interest of the child. (3) A proposed child support order is less than a noncustodial parent is capable of paying. (4) A personal appearance of a party or interested person would be in the best interests of justice.

(c) An affidavit submitted pursuant to this section shall contain a stipulation by the affiant that the affiant understands that proof will be by affidavit and that the affiant will not appear before the court unless so ordered by the court.

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