By Ariel Sosna and Sarah Van Voorhis, Van Voorhis & Sosna
Keeping up with Khloe Kardashian’s divorce from NBA star Lamar Odom is not difficult as long as Odom refuses to respond to Kardashian’s Petition for Dissolution.
However, ten months after Kardashian filed for divorce, a Los Angeles Superior Court judge has directed her to either seek a default or dismiss the action. Courts do not want divorce cases to become stale due to the inaction of one or both parties. Since Odom apparently “disappears here and there” according to People magazine, and has so far ignored Kardashian’s divorce filing, she has a couple of options including obtaining a divorce without Odom’s involvement or consent.
One option for Kardashian is to file a Request to Enter Default against Odom and set her case for hearing in order to obtain a judgment of dissolution without his approval. See California Rule of Court 5.402(a).
Because Odom did not file a Response to Kardashian’s Petition within thirty days of being served, once she files the default request, the court clerk must enter Odom’s default and set the case to proceed to judgment on the uncontested/default calendar. See CRC 5.401. A judgment can then be entered once Kardashian “proves up” her case; that is, offers evidence of the relief she requests. Kardashian’s personal appearance at a formal “prove up” hearing is not necessarily required. The prove-up is commonly made by declaration (affidavit) under penalty of perjury. See Family Code Section 2336. In fact, Family Code Section 2336 is one of the few statutory exceptions to the hearsay rule rendering declarations admissible for their truth. See Elkins v. Superior Court (2007) 41 C4th 1337, 1354-1355.
If one party, like Odom, is refusing to participate, it is the court’s responsibility to divide the estate equally pursuant to Family Code Section 2500 et seq. In all default cases where the parties have a community estate, the petitioner must be prepared to present evidence showing that the proposed property division is equal or if unequal, why an exception should be applied.
Determining how to divide up Kardashian and Odom’s estate without Odom’s involvement could be very difficult, but it is reported that Kardashian and Odom have a very detailed premarital agreement. If that is the case, as it most likely is given their financial standing, division of their property will likely follow the terms of the agreement making the ‘prove up’ hearing a very simple matter.
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