Who’s Who in Divorce?
Divorce Agreement: The spouse that starts the case by filing the first divorce papers is called the Petitioner. The other spouse will be the Respondent, the spouse that responds to the Petitioner’s divorce filing. There’s very little legal difference between Petitioner and Respondent and both have the same legal rights and opportunities in court. You’ll be Petitioner or Respondent for the rest of your case; you might also be referred to as the party or, together, as the parties.
The Petitioner will start the divorce case by filing the Petition Packet in their county’s family court. This packet includes the Petition for Dissolution of Marriage, i.e., “I want a divorce,” or, “I want a legal separation or nullity,” the Summons, and if you have children, Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act. These forms can be found online at the California Court webpage and in this course. Also, make sure to check with your county for any local forms that need to be included with your Petition Packet.
The first form in the Petition Packet is the Petition, FL-100. The Petition gives you an opportunity to request orders in your divorce and state your position on those issues. Mark every issue that applies to you such as property division, child custody, child support, and spousal support. You have the option to provide more details using other FL forms as attachments. However, you are not required to provide the details in the Petition. None of what you mark on your Petition will actually take place when you file or serve your spouse.
The Petition is important because it gives the judge the power to decide your case or make court orders out of the agreements you reach with your spouse. You need to check the box for every issue in your divorce to give the judge that power.
If you made a mistake but filed the Petition, you can file an Amended Petition by checking amended at the top of the FL-100 and filing it again. You can do this before your spouse files a response to the divorce; but, if your spouse already filed, you’ll need the judge’s permission to amend.
Date of Separation:
In addition to identifying the issues in your divorce, the Petition asks for your date of separation. The date of separation is when there is a complete and final break in the marriage either because one spouse expressed to the other the intent to end the marriage or the conduct of the spouse is consistent with the intent to end the marriage. The date of separation is important. Your earnings and debts you incur after the date of separation are yours and not shared with your spouse.
You may have a very obvious date of separation, or it might be hard to figure out. You went back and forth to counseling; had a huge fight but then made up; never really had the divorce talk, or no one has moved out yet.
Depending on your case, the date of separation may not have a real impact on your case so its not important to figure out. No assets were received or debts incurred after the date of separation, so there is no impact on the division of property. For others received significant property or incurred huge debts after the separation date, it will be more important.
If you cannot agree to the date of separation and it impacts the asset division, the court will look closely at the facts to decide on the date; such as, when did one spouse move out of the family home; when did you stop marriage counseling; and whether you had any conversations about ending your marriage or a significant event, like a huge fight, that ended the marriage. You can use the same rubric the court uses to reach an agreement with your spouse.
If you are unsure, you do not need to put a date. If you do put a date of separation on your Petition, and you later change your mind about the date, you can change it with the final divorce papers or amend your petition.
The second form is the Summons, FL-110. A summons states that a lawsuit’s being brought against another person. In this case, your spouse. You may not think of divorce as a traditional lawsuit, but it’s still considered one. Even if you do not want to sue your spouse, the Summons must be filed with the Petition Packet.
On the first page of the Summons, there is a notice to the Respondent to file a Response within 30 days, or the court can make orders without the Respondent’s knowledge. The court can only make those orders if the Petitioner files a request for a default divorce after the 30 day window expires and before Respondent files a Response or otherwise appears in the case. Making an appearance is a legal term for when the Respondent participates in the case such as filing a document or attending a court hearing. If you are the Respondent, file the Response Packet in time to prevent Petitioner from taking a default divorce. The Response Packet is similar to the Petition Packet, but include Respondent’s forms, which I’ll discuss next.
On page 2 of the Summons, the Automatic Temporary Restraining Orders, referred to as ATROs, are listed. The ATROs are automatic temporary restraints on both the Petitioner and Respondent. Once the Petitioner files the Petition the restraints -apply to the Petitioner; and once the Petition is served on Respondent, the restraints apply to the Respondent. The ATROs restrict you and your spouse from actions like discarding any property, canceling insurance policies, or taking the children out of state during your divorce process. For some of the ATROs, you just need an agreement with your spouse to proceed. It’s extremely important that you both read these and follow them until your case is complete. Failure to follow the ATROs could result in adverse consequences such as sanctions. The ATROs automatically terminate when your divorce is final.
In addition to these restraints, the Summons includes one more order. You cannot make an extraordinary expense or large purchase without notifying your spouse at least five business days in advance. This restriction does not apply to the payment of attorney’s fees and court costs. An extraordinary expense depends on your family’s lifestyle. Extraordinary for one family might not be for yours. Discuss with your spouse what an extraordinary expense will be for you during the divorce process. If you do have an extraordinary expense, notify your spouse in writing so you have a record.
The third form is the UCCJEA, FL-105. If you have minor children, this form is mandatory. It’s used to establish California as your children’s home state for child custody purposes allowing the judge to enter child custody orders for your children. At minimum, your children must have lived in California for the 6 months before the filing. Carefully review this form and make sure to provide all information requested.
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