California Family Code § 2336

Plain-Language Summary

California Family Code § 2336 ensures that when one spouse fails to respond (defaults) in a divorce or legal separation, the court cannot simply grant a judgment on default. Instead, the petitioner must provide proof of the alleged grounds for the divorce. In practice, this means the petitioner must submit sworn evidence (usually affidavits) about the marriage breakdown and financial details. The statute explicitly requires “proof of the grounds alleged,” and if that proof isn’t presented in court it “shall be by affidavit.” In effect, § 2336 treats such affidavits as trusted evidence (a rare hearsay exception) so that default divorces are decided on actual proof rather than mere absence of objection.

Real-World Examples

  • Default Divorce Prove-Up: A wife files for divorce and serves her husband, who fails to respond. Before granting the divorce, the court follows §2336 by holding a “prove-up” hearing or accepting affidavits. The wife must swear under penalty of perjury to the factual grounds for divorce, along with the required financial disclosures.
  • Income Disclosure with Children: The divorcing couple has two minor children. Under §2336, each affidavit must include each parent’s estimated monthly gross income. If one spouse lacks income information, they must explain why. This ensures child support calculations are based on declared earnings.
  • Community Property Valuation: The marriage involved community property (joint assets and debts). In her prove-up declaration, the petitioner must estimate the value of all community assets and debts to be divided. Section 2336 requires each party to detail these values (unless a detailed property declaration is already filed).
  • Judicial Discretion to Require Appearance: Normally the petitioner proves up the divorce by affidavits only. But §2336 allows the court to order a personal appearance if certain issues arise – for example, if reconciliation seems possible or proposed child support or custody orders seem unfair. In those cases, the judge can require the affiant (the petitioner) to appear in person to explain and testify instead of relying solely on written declarations.

Published Case Law on § 2336

  • Elkins v. Superior Court, 41 Cal.4th 1337 (2007) – The California Supreme Court noted that §2336 “requires various items of proof of fact to be submitted to the court in support of a default judgment and requires such proof to be in the form of an affidavit.” Elkins emphasized that §2336 creates a hearsay exception for default prove-ups where affidavits may be used in place of live testimony.
  • Bijan Boutiques, LLC v. Isong, 104 Cal.App.5th 132 (2024) – This Court of Appeal decision reaffirmed that Family Code §2336 prohibits granting default dissolution judgments without factual proof. The court emphasized the petitioner must support the judgment with declarations about finances, custody, and other contested matters.
  • Yeung v. Soos, 119 Cal.App.4th 576 (2004) – Although not a divorce case, this quiet title action cited §2336 to emphasize the legal principle that even in default proceedings, factual evidence is still required. The court stated §2336 reflects California’s policy of ensuring fairness in dissolution by requiring proof on the merits.

Full Text of California Family Code § 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.

This page is for informational purposes only and is not legal advice. For guidance on your situation, consult a licensed attorney.