- What paperwork do I need to complete to file for divorce?
- What paperwork do I need to complete to file for divorce?
- What are the next steps after I have served the other party with a copy of the petition?
- What are my options for serving the other party with a copy of the divorce petition if they reside in another state or if I am not aware of their whereabouts?
- The other party is in the military and I cannot find him/her, what can I do to move the case along if I cannot locate him/her?
- What happens if the other party does not respond to the petition?
- I originally filed for legal separation and the judgment is now final. I now want to divorce my husband/wife; can I now change the judgment from legal separation to a judgment for divorce?
- I just became aware that a default judgment was entered against me and I was never served with a petition for divorce, what can I do?
- How do I change my custody/visitation and support orders?
- I know the other party is using drugs and I do not want the children to visit with him/her as ordered by the court, what can I do?
- My husband/wife is not allowing me to see my children, what can I do to see them?
- My ex son-in-law has custody of my grandchildren and will not allow me to see them what can I do?
- I currently have a wage garnishment for child support and my child has just turned 18, how do I stop the wage garnishment?
- The other party is not assisting me, how do I open a child support case?
- What can I do if the other party is not following the court’s orders?
Whether filing for Dissolution, Legal Separation or a Nullity Proceeding, the process is essentially the same. The minimum document requirements are: Summons (FL-110), Petition (FL-100) and a Certificate of Counsel. If you have children you must also file a Declaration Under Uniform Child Custody Jurisdiction and Enforcement(FL-105). Recommended additional forms: Income and Expense Declaration(FL-150), Schedule of Assets and Debts (FL-142), and Property Declaration – Separate and Community (FL-160).
The “Recommended Additional Forms” are called “Declarations of Disclosure.” These documents are required by the court near the beginning of a Dissolution, Legal Separation or Nullity Proceeding. Updated Disclosures may be required at the end of your case too. So, if you do your first set now, you will be in compliance with the law AND you can save yourself an extra step.
After service of the initial documents on the other side (the Respondent), what you are required to do will depend upon what actions the Respondent takes. The Respondent has 30 days to file a written Response (FL-120) to your Petition.
If the Respondent does not file a Response, you may obtain a default judgment or you may complete the case by agreement. You may complete the case by agreement even if the Respondent does not file a Response. In that case, the Respondent’s signature on the agreement must be notarized.
If the Respondent does file a Response, the parties must either enter into an agreement that is turned into a judgment, or they must go to trial.
No matter what your friends tell you, you will NOT BE SINGLE in 6 months. Finalizing your divorce does not happen automatically, it requires MORE PAPERWORK called a Judgment! The parties are responsible for taking the necessary steps to get the final Judgment. Therefore, the amount of time it takes to get the final judgment is up to the parties.
The soonest you can become single is 6 months and one day after service on the other party, but certain documents must be on file, including the proof of service. So, if you fill out Judgment paperwork and turn it in before the 6 months and one day has passed, provided the paperwork is done correctly, you will receive your Judgment in the mail with the Judge’s signature. The Judgment will also have a date written on it. That date refers to “Date Marital or Domestic Partnership Status Terminates” – the date written next to this language is the date you become single. IF you submit your Judgment paperwork after the 6 month and one day time period, you will become single the day the Judge signs the paperwork. To be sure you are divorced, you will want to be sure a document called Notice of Entry of Judgment is in your court file.
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Out of State Service:
Certified Mail. If the Respondent lives out of state, he or she can be served by mailing a copy of the Summons/Petition and all other filed documents by certified, return receipt mail to that person. In order for service to be valid the return receipt from the post office must be signed by the Respondent, not by any other person. If the Respondent does not sign for the documents, you will need to attempt either personal or substituted service.
Acknowledgment and Receipt: This type of service is used on an out of state or out of country Respondent. With this type of service, the server mails to the Respondent a copy of the Summons/Petition and all other filed documents, along with two copies of the Notice and Acknowledgment of Receipt (FL-117) and a stamped, return envelope. The server, not the Petitioner, must complete the top portion of the Notice and Acknowledgment of Receipt. Service is deemed complete on the date the Notice and Acknowledgment form is signed at the bottom by Respondent. As with a Certified Mail receipt, this type of service is NOT VALID unless signed by the Respondent.
If the Respondent does not complete, sign and return the Notice and Acknowledgment of Receipt form within 20 days of the mailing of the Summons/Petition and other filed documents, the Respondent can be liable for costs incurred in serving by one of the other valid service methods. The Petitioner must file a motion for reimbursement of these costs.
Once the Notice and Acknowledgment of Receipt is signed and returned it must be attached to Proof of Service of Summons form (FL-115) and filed with the Court.
Note: You may avoid personal service if the opposing party agrees to be served by mail. Service by mail in place of personal service may be accomplished by using the Notice and Acknowledgment of Receipt method.
Substituted Service: If you cannot get the Respondent personally served after 3 attempts, you may have your server leave a copy of the Summon/Petition and other filed documents at the Respondent’s place of business or residence. But, you must follow the legal requirements.
This involves leaving the documents with a person who is in charge at the regular place of business or a competent adult (someone over 18) who lives at the residence of the Respondent. The server must inform the person of the general nature of the paperwork.
Then, the server mails a copy of the paperwork to the same address where the papers were left, so either a residence or regular business address.
Next, the server must fill out a “Declaration of Due Diligence”. This is a document that describes all the attempts that were made to serve the Respondent personally. The Declaration is usually attached to the Proof of Service of Summons form FL-115.
Once service is complete, the person who performed the service will have to fill out a Proof of Personal Service and that will have to be filed with the court.
Publication/Posting: When all else fails – personal service, substituted service, service by acknowledgment and receipt, service by mail, return receipt requested, you can apply to the Court for permission to serve by Publication or Posting. This method is generally used to serve people WHO ABSOLUTELY CANNOT BE FOUND.
If you cannot locate the Respondent you may apply to the Court to serve by Publication or Posting. Before you can ask to serve by Publication or Posting you must make a good faith attempt to find the other party. This includes mailing a letter to the last known address to see if it comes back, talking to old neighbors, checking with relatives, going to the last known employer, checking the internet, checking with family and friends, checking to see if the person owns real property in the area by going to the County Recorder’s office and any other thing you think might help you find the person.
Your attempts to find the Respondent are put in a “Declaration”. The packet for Service by Publication is available at the Court. So is the packet for Service by Posting and Mailing. To qualify for service by Posting and Mailing, you must be low income, meaning living below the poverty level. Generally, people who are receiving public benefits or qualify for a fee waiver use this method. If the court is satisfied that you did all you could to find the Respondent the Judge will give you permission to serve by Publication or Posting. If you don’t qualify for service by Posting, then you will request to serve by Publication. This means you place a legal advertisement in a newspaper that is most likely to give the Respondent actual notice of the case. For instance, if the Respondent’s last known address is in the County of Riverside you should place the legal advertisement in a Riverside County newspaper. The advertisement must be published once a week for 4 consecutive weeks and then service is deemed complete. This manner of service is complicated and can be very costly so it should be used only as a last resort.
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An active duty member of the military can generally be found by contacting their command. Please note however that due to privacy and security concerns you may not be successful in finding someone. You may also contact the locator service for each branch of the military.
Additional resources include:
Army Worldwide Locator
8899 East 56th Street
Fort Benjamin Harrison, IN 46249-5301
Navy Locater: Navy Personnel Command (PERS 312)
5720 Integrity Drive
Millington, TN 38055-3120
Tel: 901-874-3388, Fax: 901-874-2000
Commandant of the Marine Corps Headquarter, USMC Code MMSB-17
2008 Elliot Road, Room 203
Quantico, VA 22134
United States Air Force HQ/AFBCDPDXIDL
550 C Street, West, Suite 50
Randolph AFB, TX 78150-4752.
If you have information regarding the general location and branch of the Respondent, then you can contact the base Judge Advocate General (JAG) for assistance. Call the main base operator and ask for the Judge Advocate.
Federal law, the Service members Civil Relief Act, prohibits entry of a default judgment against an active duty member of the military. You may seek legal assistance at the Family Law Facilitator’s office or through a private attorney for more information regarding the requirements and limitations of federal law.
If thirty days have passed since the Summons/Petition was served and the Respondent has not filed a written Response, the Petitioner may obtain a default judgment. A Default Judgment (FL-180) permits the Petitioner to obtain the relief that was requested in the original paperwork.
Another option is for the parties to agree to settle the case with a Stipulated Judgment or Marital Settlement Agreement. If the parties seek to settle the case with an agreement, and the Respondent has not filed a response, the Respondent’s signature on the agreement must be notarized.
If you have obtained a final Judgment of Legal Separation, you must file a Petition for Dissolution (FL-100) in order to obtain a Judgment of Dissolution, which will terminate your status as a married person.
If you were never served with the original Summons/Petition for Dissolution you may file a Motion to “set aside” the existing Judgment by Default.
If the Judgment by Default is less than 6 months old, file a “Motion to Set Aside Default Judgment per Code of Civil Procedure section 473.”
If the Judgment by Default is more than 6 month old, but less than 2 years old, file a “Motion to Set Aside Default Per Family Code Section 2121”.
If the Judgment by Default is more than 2 years old, file a separate action to ask for the Judgment to be Vacated and/or Set Aside.
In order to change existing orders, for instance those concerning child custody/visitation, or child support, you must file a Motion (FL-301) or Order to Show Cause(FL-300). Please note, however, that in order to modify an existing order it is necessary to show a significant change in circumstances that affects your ability or the other person’s ability to follow the orders. For instance, if you have a visitation plan that allows you to see the children 3 days per week and the other parent is moving to another school district, that could affect your ability to have the kids for those 3 days. If you are paying child support and you just got laid off, your ability to pay support has changed. These are “changes in circumstances” – the type of reason a Judge looks for in order to justify changing orders.
If you believe the child is in danger due to the other parent’s activities you may file an ex parte Order to Show Cause (FL-300). The ex parte allows you to ask for IMMEDIATE TEMPORARY orders for custody and visitation. Note: if you have a valid custody/visitation order that order is enforceable until changed. If you want to request a drug test, then the court may consider “habitual or continual illegal use of controlled substances” or “continual abuse of alcohol” in determining what is in the “best interest of the child”. Drug testing may be ordered only after the court has made a finding of “habitual, frequent, or continual illegal use of controlled substances”. The court is limited to ordering the “least intrusive” method of testing or urine tests only. The court may not order a parent to submit to a hair follicle drug test unless the other parent agrees to the test.
If you do not have a court order you will need to file a Motion (FL-301) or Order to Show Cause (FL-300) to obtain specific custody and visitation orders. This will require you to have an existing case, either a Dissolution, Legal Separation, Nullity, Petition to Establish Parental Relationship, Petition for Custody and Support, or County of Riverside (DCSS) v. Other Parent, prior to making the request.
If you have an existing Custody/Visitation order and the order is specific in nature (not “reasonable visitation”) get a certified copy of your order. If the other parent will not cooperate when it is time to have your children, ask the police to assist in enforcing the order. Other options include bringing a “Motion” or “Order to Show Cause” to modify custody/visitation based upon the other side’s refusal to comply with court orders.
For repeated failure by one parent to follow orders you may file a Motion (FL-301) or Order to Show Cause (FL-300) to modify custody/visitation based upon the other parent’s refusal to follow the court orders. You may also seek an “Order to Show Cause re: Contempt”. A Contempt proceeding is very difficult, time consuming, and is less likely to give you the relief you seek. A Judge will review your documents before allowing them to be filed by the Clerk, so you need to have good, clearly stated facts before filing the Contempt. Contempt should always be used as a last resort as it is a quasi-criminal proceeding.
There is little a grandparent can to do obtain visitation rights. Such rights can only be ordered by the court in very limited circumstances. Before coming to court to request Grandparent visitation, try to work something out with the parent with primary custody. This is your BEST option. Most grandparents find themselves asking for visitation because: their child, the parent of the grandchild, is deceased, incarcerated, or has disappeared due to a problem with drugs, alcohol or some other unknown reason. If the parents of the child are still living together, the Court cannot intervene to give you visitation rights.
If the parent who has custody will not allow you to see your grandchild, you should seek the advice of an attorney or come to the Family Law Assistance Center for further direction. Grandparent visitation is very case specific – your facts may or may not be sufficient to convince a court you should see the grandchild. The key fact to prove is whether the child not seeing you will actually be detrimental (damaging) to the child. In other words, it’s not what you want or are longing for, the question really is: will a visitation plan truly benefit the child.
A wage assignment may be modified or terminated once a child is 18 and has graduated from high school, or has reached the age of 19. To terminate the assignment you may file an Income Withholding For Support form (FL-195) and an Ex Parte Application for Earnings Assignment Order form (FL-430) requesting the modification and/or termination, and providing the facts that support the request. Packets explaining how to fill-out these forms are available at the Family Law Facilitator’s office or Family Law Clerk’s depending on the Court location you go to.
You may apply for assistance in obtaining child support through the Department of Child Support Services in the County where you live; or, you may ask for support orders yourself by filing a Petition for Dissolution (FL-100) or Paternity (FL-200) action along with a Motion (FL-301) or Order to Show Cause (FL-300) seeking support orders. If you are receiving cash aid (TANF/CalWorks), the Department of Child Support Services will file a case for child support on their own and without you asking.
If the other party is not following court orders you may:
- File a Motion (FL-301) or Order to Show Cause (FL-300) to modify existing orders;
- File a Motion or Order to Show Cause(FL-300) to modify existing orders AND admonish the other parent for their failure to cooperate in the parenting plan;
- File a Contempt (FL-410) action.
Note: A Contempt proceeding is very difficult, time consuming, and is less likely to give you the relief you seek. A Judge will review your documents before allowing them to be filed by the Clerk, so you need to have good, clearly stated facts before filing the Contempt. Contempt should always be used as a last resort as it is a quasi-criminal proceeding.
Under certain circumstances, a non-biological parent may be ordered to pay support. For example, if you have been treating the child as your own, the child calls you Dad or Mom, you act exactly the way a biological parent is expected to act, the Court can make an order naming you as the parent and making orders for custody/visitation and support. There are certain other actions and timelines that will influence the Court regarding whether or not such an order is appropriate. You should seek legal guidance on this issue.
If your spouse is employed you may obtain an Earnings Assignment Order for Spousal or Partner Support (FL-435) from the court or online. Fill out the form, turn it into the Court clerk’s office with a self-addressed stamped envelope and when the order is returned to you by mail, serve a copy on the employer. This will cause the employer to automatically deduct the money from your spouse’s paycheck.
Collection is still possible even if your spouse is retired, receiving Social Security Disability (not SSI), Social Security Retirement, or State Disability. If you have an order for child support in place, then you may qualify for help with collection of spousal support through the Department of Child Support Services. If Child Support Services declines to assist with collection of spousal support, seek the assistance of an attorney or ask for information at the Family Law Assistance Center.
Once you have obtained the wage assignment, a “Motion” or “Order to Show Cause” determining how much is owed in past support (arrears) can be brought and additional payments may be required monthly to pay off that arrears amount.
Collection from Self Employed individuals or people working “under the table” is nearly impossible, however, you can do the following: If your spouse is not employed, is self employed, or working under the table, and IS NOT PAYING, then you can file a Motion (FL-301) or Order to Show Cause (FL-300) to determine how much is owed in back payments (arrears). Once this amount is determined at the hearing, you ask for a money judgment. The Money Judgment should be filed in every county where the spouse who is supposed to pay may do business or own property.
Once you have your money judgment, you can pursue collection by any manner allowed by law, including levying against personal property, including certain bank accounts.
When you obtain a Judgment of Dissolution, Legal Separation, Nullity or Judgment for Custody and Support, Judgment Establishing Parentage, in which there is an order for support be sure to obtain a certified copy of that order and record it at the County Recorder’s Office in every county where the person ordered to pay resides, owns property, or does business.
So long as you have filed a case for Legal Separation then you may seek child custody, visitation and support orders in the same manner that you would if you had filed a Petition for Dissolution.
If you have not filed a case, you will need to do so before the court can make orders. Again, you can request child support by: going to Department of Child Support Services and asking them to file on your behalf,filing your own case for Dissolution, Legal Separation or Nullity. You may even ask for child support if you need to request a Domestic Violence Restraining Order.
The law does not require the judge to hear testimony from the parties or the attorneys representing the parties. In fact, a judge can make a decision based entirely on the paperwork that is submitted. Usually each side is given a little time to present new information. However, the court will listen only to those facts that are necessary to decide the issues raised by the Motion or Order to Show Cause. For instance, if the issue at the hearing concerns child custody the court does not need to hear testimony concerning spousal support, rather, the court wants to only hear about custody matters.
Your best insurance policy is to be sure your side of the story is told in your written documentation. If you do not file a written response to the other party’s documents, the judge does not have to hear your side of the story. There are important time limits you must follow. Bottom Line: your response (your side of the story) MUST be submitted to the other party and the court ON TIME or else the Judge DOES NOT have to consider it.
If you have timely and appropriately filed papers the options available to you include a Motion to Set Aside, Motion for Reconsideration, or an Appeal or Writ. Each of these motions is complex and should be considered only after seeking some legal assistance.
You will need to file a case in order to come to court and obtain orders. This means you will have to file a Petition for Dissolution, (FL-100) Legal Separation (FL-100) or Nullity (FL-100); Petition to Establish Paternity (FL-200) or Petition for Custody and Visitation. At the same time that the Petition is filed, submit a Motion (FL-301) or Order to Show Cause (FL-300) seeking custody and visitation orders. If you believe that your child may be at risk of immediate and irreparable harm, you may seek ex parte or emergency orders. Note: an emergency does not include things such as your child being registered late for school. You could be sanctioned ($$$$$) for asking for emergency orders when a child is not in danger. Further information on ex parte orders may be obtained from an attorney or Family Law Facilitator.