Dec 20

PROCEEDING WITHOUT A LAWYER: THE ANATOMY OF A DIVORCE PETITION

This Monday night I’m watching the Vikings play the Bears on the frozen Minnesota State University field, and feeling glad to live in San Diego (and glad not to be Bret Favre!). There’s another advantage to San Diego if you are filing for divorce: the San Diego Superior Court has developed packages with all the forms you’ll need to file for divorce, ask the court for temporary orders, restrain violent behavior or finalize your settlement and judgment, all without hiring a lawyer.

This is the second installment in the series on doing your own divorce, if you have to. In the simple case, you can prepare much of the paperwork yourself, and use a lawyer for spot services, such as preparing complex pleadings, appearing at motion hearings or preparing a marital settlement agreement. You can use a mediator to assist you in negotiations with your spouse.

To get started, click here to open the San Diego Dissolution Package. Then, click here for a sample Petition for Dissolution of Marriage, and print this out so that you can follow along. I’ll give you some tips that will prevent you from making several trips to the court clerk and getting documents returned. In later installments, I’ll cover the summons, service of papers, pre-trial motions and disclosures. You can use an attorney or contact my office if you get stuck.

THE CAPTION:

Whether you live in Carlsbad, San Marcos, Vista or San Diego, you can use the Dissolution Package to start your divorce paper work. Check the zip-code list to see the specific court to use when filing your paperwork. You’ll need to know this before you fill out your paperwork, because you must submit a “Family Law Certificate of Assignment,” a fillable form in your package.

To fill the form correctly, put your name and address in the upper left corner, and your telephone number. The court and the other party need to know where they can contact you and send papers to you. In the “Attorney for” field I usually put the Latin phrase “In Pro Per” which simply tells the court you don’t have an attorney.

Put your full name in the field after the word “PETITIONER”, and your spouse’s name after the word “RESPONDENT.” Since you are asking for the court to act, you are called the “Petitioner.” Your spouse will be the “respondent.”

You’ll want to leave the case number blank, as this will be filled in by the clerk. On all documents filed after the petition, you will put the case number.

DISSOLUTION OR LEGAL SEPARATION?

On my attorney-represented divorce cases, I’m often asked whether to file for “dissolution” or “Legal Separation.” There are several reasons why someone may want to file for separation instead of divorce, and most of them are religious. Unless you absolutely can’t stand to file for divorce, I recommend that you check the “dissolution” box. You can always get a judgment that keeps your marital status in tact whether or not you file for separation. However, after a judgment of separation, you will have to pay a separate filing fee if you want to actually be divorced.

In my view, legal separation has all of the disadvantages of divorce, and none of the advantages. With legal separation, you will still divide your property, pay or receive child and spousal support, and get a judgment on how you will share child custody. But unless you amend your petition later to request a dissolution, you will not get your marital status terminated.

Therefore, in most cases, you are going to request dissolution. You will only select “Nullity of Marriage” if you believe your marriage was invalid to begin with.

ASK FOR WHAT YOU WANT THE COURT TO DO:

In the property sections, you will designate what is your separate property (title obtained before the date of marriage or after the date of separation). You’ll want to ask the court to divide your community property. You’ll want to ask for spousal support in most cases, and ask that the court terminate jurisdiction to award support to your spouse.

Check the boxes to indicate, as nearly as possible, how you want the court to rule ultimately. That’s because the respondent is required to answer the petition within 30 days of service. Failure to file a response by the deadline could result in a “default judgment” where, subject to proof, you’ll get what you are asking for in the petition.

CONCLUSION:

The petition is essentially the complaint in your lawsuit. In it, you ask for what you want the court to do, and claim that the court has the power to do it. But you don’t have to worry; the Judicial Council has created forms that contain all the language you need. The petition itself is a placeholder, used mainly for the court to open a file. If you make a mistake, the court will usually allow you to amend the petition.

Nevertheless, it is important to be careful and ask for what you want in the petition. Don’t count on the court allowing you to amend.

Once you file your petition, the court will have “jurisdiction” over you, and over your marriage. “Jurisdiction” simply means the court’s power to issue orders that bind you, and affect your marriage.

Once you file your petition, your UCCJEA declaration (if you have kids under 18), your Certificate of Assignment and your Summons, the court will have jurisdiction over you and the marriage.

In my next installment, I will explain how the court gets jurisdiction (the power to act) over your husband or your wife (the respondent).

I know that thinking about divorce can ruin your holiday seasons, but take heart, knowing that you can move on with a happier life than you ever thought possible. Wishing you a very happy holiday and new year, I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

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