California Family Code § 2338.5

Summary

Family Code § 2338.5 applies only when a divorce, legal separation, or nullity judgment is entered by default (i.e., one spouse never appeared). It imposes three requirements for default judgments. First, any marital settlement agreement or stipulated judgment signed by the defaulting spouse must bear a notarized signature (subd. (a)). Second, after the default judgment is entered, the court clerk must mail the Notice of Entry of Judgment to the other side (the attorney for each party or the unrepresented party) as required by subdivision (b). Third, to facilitate that mailing, the party who submits the default judgment must provide the clerk with a stamped envelope addressed to the other party (or their attorney) with the clerk’s address as the return; if the notice is returned by the post office, the clerk must file the returned envelope in the case (subd. (c)). These rules ensure the defaulting spouse’s agreement is authentic and that both parties receive formal notice of the judgment.

Examples

• Default requiring notarization: Spouse A files for divorce and Spouse B never responds. If A and B nevertheless enter into a settlement to resolve all issues, then B’s signature on that settlement or on a stipulated judgment must be notarized under § 2338.5(a). For example, if B signed a marital settlement agreement before default but it was not notarized, the court would refuse to enter a default judgment on that agreement until B’s signature is properly notarized.
• Notice of entry of judgment: After entering a default judgment, the petitioner (the spouse who filed) must give the court clerk a stamped envelope addressed to the other side. For instance, if the defaulting spouse (or that spouse’s lawyer) lives in another city, the petitioner provides an envelope addressed to that city. The clerk then mails the Notice of Entry of Judgment as required by § 2338.5(b). This ensures the non-filing spouse is officially informed of the judgment.
• Returned envelope kept in file: Suppose the defaulting spouse has moved and the mailed notice is returned as undeliverable. Under § 2338.5(c), the clerk must keep the returned envelope or notice in the court file. This creates a record that notice was attempted. In our example, even if the letter came back, the court would consider its mailing obligation satisfied because the petitioner provided the envelope and the clerk kept the return, just as the statute requires.

Relevant Cases

• In re Marriage of Fan, (2006) 143 Cal.App.4th 782 [49 Cal.Rptr.3d 424]
  Wife defaulted on the dissolution action and husband obtained judgment. The court noted that the clerk mailed the notice of entry of judgment to the defaulting spouse on the day it was filed, using the stamped, addressed envelope provided by petitioner. This satisfied Family Code § 2338.5(c), which requires the clerk to mail a copy of the judgment to the defaulting spouse in the provided stamped envelope. The court held the notice requirement was properly met, and the default judgment was valid.
• In re Marriage of Bryant, (2007) 157 Cal.App.4th 1398 [69 Cal.Rptr.3d 412]
  Husband sought to set aside a default divorce judgment, arguing it was void for lack of compliance with Family Code § 2338.5(a) (which requires a notarized signature of the defaulting spouse on any settlement). The Court of Appeal rejected this claim, explaining that § 2338.5(a) applies only to default or uncontested judgments. Here, the parties had actually entered binding arbitration and the judgment was effectively contested. Because the proceeding was not a pure default case, the statutory default-only provisions (including § 2338.5) did not apply, and the default judgment could stand.

Full Text

Where a judgment of dissolution or nullity of marriage or legal separation of the parties is to be granted upon the default of one of the parties:

(a) The signature of the spouse who has defaulted on any marital settlement agreement or on any stipulated judgment shall be notarized.

(b) The court clerk shall give notice of entry of judgment of dissolution of marriage, nullity of marriage, or legal separation to the attorney for each party or to the party, if unrepresented.

(c) For the purpose of mailing the notice of entry of judgment, the party submitting the judgment shall provide the court clerk with a stamped envelope bearing sufficient postage addressed to the attorney for the other party or to the party, if unrepresented, with the address of the court clerk as the return address. The court clerk shall maintain any such document returned by the post office as part of the court file in the case.

Disclaimer: This summary is provided for general informational purposes only and does not constitute legal advice. Laws may change, and cases may vary on their facts. Consult a qualified attorney for advice about any specific legal situation.