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Divorce & Legal Separation
What to do if you are served with divorce papers?
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Identify whether the petition is for divorce, legal separation or nullity. Depending on your circumstance, you may be entitled to file a Motion to Quash Proceeding or a Motion to Change Venue.
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Determine whether a California Court may exercise "personal jurisdiction" over you and your property especially if you are a non-California resident. Depending on your circumstance, you may be entitled to file a Motion to Quash Service of Summons.
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If there are children of the marriage, determine whether a California Court has "subject matter jurisdiction" over child custody and visitation especially if your children have resided out of California for more than 6 months. Depending on your circumstance, you may be entitled to file a Motion to Stay or Dismiss Action on Ground of Inconvenient Forum.
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Consult with an attorney who may assist you with preparing and filing a timely response within 30 days from the date you were served if necessary. Call (925) 289 7989 today and start getting the advice and assistance you need
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In California, mutual consent is not required to end a marriage. This means if your spouse decides to end the marriage, even though you do not agree or want to get divorced, you cannot stop the process. The Court can terminate your marital relationship so long as your spouse wants to end the marriage. If you refuse to participate in a case, your spouse will still be able to get a default judgment. Assuming you were properly served, you have 30 days from the date you were served with the Summons and Petition to respond. Time is of the essence, call (925) 289 7989 today to receive timely legal advice and assistance you need.
30 Days To Response
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California Family Code section 2339(a) provides a 6 months mandatory "waiting period" from the date you were served until a judgment of dissolution may be entered. The intent for the mandatory "waiting period" is to give spouses the time to reflect and the opportunity to reconcile before going through with a divorce. It also gives you time to work on custody and visitation schedules, investigate financial issues and to gather important documents in preparation for a settlement or trial.
6 Months Mandatory "Waiting Period"
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According to the California Family Code section 2320(a), a judgment of dissolution of marriage (i.e. divorce) may not be entered in California unless at least one party to the marriage has been a resident of California for 6 months and of the county in which the proceeding is filed for 3 months immediately before the filing of the petition. Therefore, people who recently moved to California from other states or countries cannot get divorced in California until at least one party has satisfied the residency requirement. Under California Rules of Court (CRC) 5.63, a respondent may move to quash the proceeding on various grounds, one of which is the failure to meet the residence requirement of Family Code section 2320(a). Failure to file a timely Motion to Quash is deemed to waive the right to attack the proceedings on any of the grounds enumerated in CRC Rule 5.63(a).
Motion to Quash Proceeding
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A respondent may move for a change of venue for any grounds enumerated in California Code of Civil Procedures (CCP) section 397. A respondent may move for a change of venue if the court in which the action is pending is not one in which the petition may be properly filed. According to the California Family Code section 2320(a) the petition for dissolution of marriage may be filed in a county in which either party has been a resident for 3 months immediately before the filing as long as the party was also a California resident for 6 months immediately before the filing.
A respondent who concedes that that the petition was properly filed in the county where the petitioner resides may nonetheless file a motion to change venue to the county where the respondent resides on the grounds that the ends of justice would be promoted by the change pursuant to CCP 397(e). When marital actions between the same parties are filed in two different counties, the action which was served first is entitled to proceed, even if the other action was filed first.
Motion to Change Venue
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The basic requirement for a California Court to exercise personal jurisdiction over an individual is that he or she have "minimum contacts" with California such that a maintenance of the action in California does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington (1945) 326 US 310, 316. The following bases may be sufficient to give California personal jurisdiction over an individual: (1) presence in the state; (2) domicile; (3) residence; (4) citizenship; (5) consent; (6) appearance in the action; (7) doing business in the state; (8) doing an act in the state; (9) doing an act elsewhere that causes an effect in the state; (10) ownership, use or possession of a thing in the state; or (11) other relationship to the state that make the exercise of jurisdiction reasonable.
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In general, so long as a non-California resident has not abandoned his or her families and forced them to rely on California's welfare, the Courts have rejected assertions of personal jurisdiction over non-California residents whose own contacts with California were insignificant. However, the minimum contacts requirement does not apply when a non California resident is personally served with process in California.
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If you are a non-California resident who has been served with California divorce papers outside of California, you may be able to challenge the assertion of personal jurisdiction by filing a timely motion to quash service of summons. Depending on your situation, you may allow default to be taken and then appeal the judgment on jurisdictional grounds, file a separate proceeding to set the judgment aside or assert the judgment's invalidity as a defense to enforcement. Call (925) 289 7989 today to receive timely legal advice and assistance you need.
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Under the concept of "divisible divorce", California may have jurisdiction to grant a dissolution of marriage against a nonresident respondent (e.g. termination of marital status) but lack jurisdiction to make orders affecting that party regarding child custody, child support, spousal support, division of property, or attorney fees and costs. See Marriage of Gray (1988) 204 Cal App. 3d 1239, 1248.
Motion to Quash Service of Summons
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Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a California Court may decline to exercise jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. Pursuant to California Family Code section 3427(b), a California Court must consider all the statutory factors in making its determination, including the following:
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(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
(2) The length of time the child has resided outside this state.
(3) The distance between the court in this state and the court in the state that would assume jurisdiction.
(4) The degree of financial hardship to the parties in litigating in one forum over the other.
(5) Any agreement of the parties as to which state should assume jurisdiction.
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
If your child has resided outside of California for more than 6 months and substantial evidence concerning the child’s care, protection, training, and personal relationships no longer remains in California; California may not have jurisdiction to make an initial child custody determination under the UCCJEA.
If you believe another state may be a more appropriate forum, you may move to stay or dismiss the action on the ground of forum non conveniens. If such motion is made within 30 days from the date you were served, the motion constitutes a special appearance. According to CCP 418.10, the respondent's time to file a response is extended until 15 days after service of a written notice of entry of an order denying the motion. California Family Code section 2012 provides that a respondent who appears only in opposition to a request for temporary orders while a motion to stay or dismiss the action on the ground of inconvenient forum is pending will not be deemed to have made a general appearance. If the California Court determines that it is an inconvenient forum and the court of another state is a more appropriate forum, the California Court must stay the proceedings on the condition that a child custody proceeding be promptly commenced in the other state. Call (925) 289 7989 today to receive timely legal advice and assistance you need.
Motion to Stay or Dismiss Action on Ground of Inconvenient Forum
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While a "Judgment of Dissolution of Marriage" i.e. divorce or a "Judgment of Legal Separation" may be granted on the same ground of irreconcilable differences, the major difference between the two is that a Judgment of Dissolution of Marriage will terminate your martial status i.e. restore your single person status whereas a Judgment of Legal Separation does not change your marital status.
Unlike divorce, a Judgment of Legal Separation means you are still legally married and you will not be able to remarry. There is no residency requirement for filing for legal separation. There is also no mandatory waiting period to effectuate a legal separation. For personal or religious reasons, a couple may prefer legal separation over divorce. Legal separation allows some space for the parties to consider if divorce is really what they want and to test out different custody and visitation scenarios. In some cases, after spending some time apart, reconciliation become possible.