Cameron Miranda
If you are unable to locate your respondent in a family law case in California, there are a few important things to keep in mind. Firstly, understand that California is a no-fault divorce state, meaning that if one person requests a divorce, they are entitled to it, and the other party cannot object. If you are the petitioner and your spouse is the respondent, they have 30 days to file a response or a Motion to Quash the proceedings. If they fail to do so, you can file a Request to Enter Default and proceed with the case without their input. This could result in the court ending your relationship or making orders about property or child custody without their participation. Additionally, if you are the respondent and choose not to respond to the divorce case, ensure that you carefully read and agree with all the information listed in the paperwork, including property, debts, support, and child custody. Not responding indicates your agreement with the terms presented.
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What You'll Learn
California Divorce Form FL-120
The form should include the respondent's name, address, and phone number. In Contra Costa County, the fax number and email address fields are optional. The form should also include court information, including the county, street address, mailing address, and branch name (if applicable).
It is important to note that California is a “no-fault” state, meaning that either party can request a divorce, and the state does not consider the reasons for the divorce when it comes to asset and debt distribution. The only grounds for divorce in California, besides "irreconcilable differences", is the permanent legal incapacity to make decisions.
The respondent has the option of not responding to the divorce case if they agree with all the information listed in the paperwork, including property, debts, support, and child custody. However, if they disagree with anything in the divorce petition, they can choose to file a response with the court, presenting their requests in the case. This response is Form FL-120, which must be filed and served within 30 days of receiving the petition and summons to protect the respondent's rights and ensure their full participation in the divorce.
If the respondent has minor children, they also need to file Form FL-105, which is a UCCJEA form required if there are minor children of the marriage.
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Responding to a Petition
If you are responding to a divorce petition in California, you have options. If you agree with all the information listed in the paperwork you were served with (e.g. property, debts, support, child custody), you do not need to respond. If you disagree with anything within the divorce petition, you can file a response with the court. The purpose of filing a response is to give you the opportunity to present your requests in the case. If you decide to respond, you will have to pay the current filing fee. If you do not respond within 30 days of receiving the petition, your spouse can ask for a default, and the court can decide the case without you. This means the court could end your relationship or make orders about your property or the custody of your children without your input.
If you are responding to a petition for custody and support for minor children, you will need to fill out the form called Response to Petition for Custody and Support for Minor Children (form FL-270). You will also need to fill out the Declaration under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (form FL-105). This form tells the court where your children were born and live and if there are any other court cases involving them. You must fill out this form if your children are under 18.
A Responsive Declaration to the Request for Order must be filed and served with any supporting documents within 9 calendar days of the hearing. The Responsive Declaration must set forth facts sufficient to notify the other party of the declarant's contentions in response to the request for the order and in support of any relief requested.
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Filing a Response
If you are filing a response in a divorce case in California, it is because you disagree with something within the divorce petition. Filing a response gives you the opportunity to present your requests in the case. You will have to pay the current filing fee. If you do not file a response within 30 days of being served with the petition, the other party can enter you into a default status, meaning you can no longer respond. The other party will then begin the process to get a default judgment.
If you are the respondent and did not file a response or sign an Appearance Stipulation and Waiver, then any agreement will require your signature to be notarized. You may submit your judgment paperwork once a Request to Enter Default (form FL-165) and/or Appearance, Stipulation, and Waiver (form FL-130) has been submitted, and both parties have served their disclosure documents and provided proof to the court using Declaration Regarding Service of Declaration of Disclosure (form FL-141).
A Responsive Declaration to the Request for Order must be filed and served with any supporting documents within 9 calendar days of the hearing. This must set forth facts sufficient to notify the other party of the declarant's contentions in response to the request for the order and in support of any relief requested.
It is important to note that different California counties have their own additional local rules, so be sure to check the Local Rules by visiting the County website for your jurisdiction.
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Jurisdiction and Service
Jurisdiction
Jurisdiction refers to the legal authority of a court to preside over a case and make decisions. In family law matters, jurisdiction can be established in several ways. For example, in divorce proceedings, the court's jurisdiction is typically based on the residency of the spouses. In California, at least one spouse must be a resident of the state for at least six months before filing for divorce. This ensures that the California court has the authority to grant the divorce.
In matters of child custody and support, jurisdiction is typically determined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law ensures that only one state has jurisdiction over child custody matters at a time. Under the UCCJEA, the "home state" of the child, which is typically where the child has lived for the last six months, has jurisdiction. However, as seen in a case from Sonoma County, California, a court may claim temporary emergency jurisdiction if the child is present in the state and there is an immediate need to protect the child.
Service
Service of process is the procedure by which legal documents, such as a divorce petition, are delivered to the respondent. Proper service ensures that the respondent is notified of the legal action and given an opportunity to respond. In California, the respondent in a divorce case typically has 30 days to file a response after being served with the divorce petition and other paperwork. This response must then be served on the petitioner, and proof of service must be filed with the court.
Service of process can be accomplished through various methods, such as personal service, where the documents are handed to the respondent in person, or substituted service, where the documents are left with someone else of suitable age and discretion at the respondent's residence or place of business. Proper service is essential for the court to proceed with the case and make binding decisions.
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Attorney's Fees
In California, attorney's fees can be a significant concern for those involved in family law disputes, particularly in divorce cases. The California Family Code allows trial courts to award attorney's fees in various family law matters, including marital dissolutions, legal separations, and domestic violence proceedings. The specific statutes that authorise these awards include:
- Family Code section 271: This section allows the court to award attorney's fees when one party has frustrated the policy in favour of settlement or caused delays.
- Family Code section 274(a): This section covers defending a claim for marital benefits by a spouse convicted of attempting or soliciting the murder of the other spouse.
- Family Code sections 1101(g) & (h): These sections address proceedings by one spouse for remedies for a breach of fiduciary duty by the other spouse.
- Family Code section 2030: The court can order one party to pay a reasonable portion of the other party's attorney's fees to ensure equal litigating power.
- Family Code section 2107(c): This section addresses the failure to comply with disclosure declaration requirements.
- Family Code section 3027.1(a): The court can award attorney's fees for knowingly false accusations of child abuse or neglect during child custody proceedings.
- Family Code sections 2030 through 2032: These sections allow for need-based requests, where one spouse may seek attorney's fees based on their need and the other spouse's ability to pay.
- Family Code section 7605: Similar to sections 2030 through 2032, this section applies to parentage cases involving child custody and child support for unmarried parents.
- Family Code section 271: This is a sanction-based statute that punishes conduct frustrating California's policy of resolving family law cases amicably.
- Family Code section 3652: This section permits the prevailing party in a support modification hearing to seek attorney's fees from the non-prevailing party.
- Family Code section 6344: The court can order attorney's fees in favour of the winner in a domestic violence restraining order proceeding.
The process of obtaining attorney's fees can vary. In California, an application for an award is typically made through a Request for Order (form FL-300), accompanied by an Income and Expense Declaration form (form FL-150). It is important to note that the court considers the relative circumstances and ability to pay of both parties when determining the award. Additionally, the court will limit the award to an amount necessary to efficiently handle the matter, and tactics that unnecessarily prolong litigation may result in a denial of attorney's fees.
Before and after family law proceedings, individuals are entitled to access joint funds or separate property to retain legal counsel. However, it is generally advised to consult an attorney before taking control of these funds, as doing so may negatively impact the proceedings.
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Frequently asked questions
If the respondent doesn't respond within 30 days, the petitioner can ask the court to decide the case without the respondent's input. This is called a default. The court could end the marriage, make orders about property or child custody, or order the respondent to pay support or attorney's fees.
A default is when the respondent doesn't respond to the divorce petition within 30 days. The petitioner can then proceed with the case without the respondent's input and request a default judgment. The petitioner must file a Request to Enter Default (form FL-165) and provide proof of service (form FL-115).
If both parties fail to appear, the hearing is typically taken off the calendar. However, if the petitioner appears and the respondent doesn't, the hearing will proceed as requested.
The purpose of filing a response is to give the respondent an opportunity to present their requests and disagree with any information listed in the divorce petition, such as property division, debts, support, or child custody.
The forms required for proof of service depend on the method of service. If service is by mail, use form FL-335. If service is in person, use form FL-330.
