Written by: Eric Proos
We have all seen a movie when a man, or woman, is served with “divorce papers” and does not sign the “papers” for years. In most of these movies the “papers” are hidden away and the individual served with them is reluctant to sign and proceed with the divorce. This begs the question, are the movies accurate when depicting the divorce process? The simple answer is no, with one minor exception. This blog will discuss the legal process when initiating or responding to divorce proceedings.
Before I get into how to initiate and respond to dissolution proceedings, let me define some basic terms. In dissolution of marriage proceedings the person filing the Petition for Dissolution is called the Petitioner, and the person served with the Petition is called the Respondent. Now that the basic terminology is covered, let’s dive in.
Every dissolution of marriage in California starts with serving of the Petition for Dissolution of Marriage (FL-100), the Summons (FL-110), a Property Declaration which lists each item of property and debt and whether the party believes it is community property or separate property (optional in certain circumstances) (Fl-160), and a proof of service (FL-115). In addition to the previously mentioned forms, the Petitioner must serve the Respondent with Preliminary Declarations of Disclosure consisting of the Declaration of Disclosure (FL-140), Declaration Regarding Service of the Declaration of Disclosure (FL-141), Schedule of Assets and Debts (FL-142), and Income and Expense Declaration (FL-150). These must be served on the other party either with the Petition or thereafter. The Preliminary Declaration of Disclosure cannot be waived by either party and should not be filed with the Court.
Back to the movie scenario. The movies are accurate in the fact that the Petition, Summons, Property Declaration, and Proof of Service must be personally served. This means that a non-party must personally hand the papers to the opposing party. The filing of the Petition starts a 30-day clock for the opposing party, referred to as the Respondent, to respond.
When the Respondent is served with the Petition they have a few options. First, respond by filing and serving the Response (FL-120) and Proof of Service by mail (FL-335). The Respondent should also serve a Declaration of Disclosure (FL-140), Schedule of Assets and Debts (FL-142), and an Income and Expense Declaration (FL-150). It’s also a good idea to serve a Property Declaration (FL-160) in order to categorize all property as either separate or community. Second, the Respondent may choose to not respond within the 30 days, which results in a default (This course of action is not recommended as there a number of consequences). Third, the Respondent may choose to engage in settlement discussions and seek an extension of time to respond. Only the opposing party or the court may issue an extension of time. If the opposing party agrees to an extension make sure it is stipulated to and filed with the Court, as it must be in writing. This will protect the Respondent from a default judgment being entered.
As you may have guessed, it is not a good idea to get your divorce advice from the movies, especially when the “ papers” are hidden away for years. It must be noted that if minor children are involved there are additional forms for each party to complete.
This blog is in no way legal advice, and there are a number of specifics that are not discussed here.
If you have any questions regarding initiating or responding to divorce proceedings please contact our office.