If your spouse has filed a petition with the court to end your marriage, they must have you served with a copy of the divorce papers. This means that someone other than your spouse will deliver a copy of the Petition and the Summons to you. Once you receive the forms notifying you that divorce proceedings have begun, you can submit a Response.
You are not required to file a Response after being served. However, your choice determines how much input you will have in your divorce.
This blog will discuss your options for responding and the effects of each.
What Happens After Being Served?
If you have been served with divorce papers, at minimum, your spouse should have provided you with copies of the Petition-Marriage/Domestic Partnership and the Summons. The Petition contains details about your marriage and family. It can also include a request for the court to make orders on issues such as how to divide property, payment of support, or child custody and visitation.
The Summons provides information concerning your option to respond and general restraining orders during a divorce case. For instance, you cannot take your kids out of state unless you have your spouse's consent or court order. You also cannot conduct certain financial transactions, nor can you take any action affecting community, quasi-community, or separate property (California Family § Code 2040(a)).
If you and your spouse have children, you should also be served with a copy of the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act.
After receiving the documents, read everything carefully.
You want to be sure you understand:
- What your spouse is requesting,
- What you can and cannot do while your divorce is pending, and
- The effects of not filing a written response.
If you decide to respond, you must complete the Response form. The document is similar to the Petition your spouse filled out. It asks for information about your marriage, your relationship, and issues that need to be settled as part of the divorce. Under California Family Code § 2020, "[a] responsive pleading, if any, shall be filed and a copy served on the petitioner within 30 days of the date of the service on the respondent of a copy of the petition and summons."
After you fill out the response, you must make two copies and submit them to the court clerk along with a filing fee.
You must have your spouse served with a copy of the response, but you cannot do this yourself. Someone 18 years of age or older must do it for you. The person who served the documents must complete a Proof of Personal Service form, which you must file with the court.
Even at this early stage of your case, it may be beneficial to speak with a lawyer. They can help you understand what the Petition contains, advise you on filing a response, and ensure that your paperwork is completed correctly.
The Ways A Response Can Impact Your Case
As mentioned earlier, you are not required to submit a Response after being served (although, technically, choosing not to respond can be considered a response).
The option you choose impacts how the court will finalize your case and can include the following scenarios:
- No response and no agreement in place: You might decide that you will not respond at all to your spouse's request for a divorce. If you go this route and you and your spouse have not developed a written agreement on how to settle divorce-related matters, you lose your right to have a say in the case. Referred to as a "true default" divorce, this option means that the court will likely grant your spouse everything they asked for when they filed the Petition. Your spouse can submit the necessary judgment documents, and the judge will sign the judgment without hearing from you.
- No response with a written agreement in place: It might be the case that you and your spouse have agreed beforehand how matters such as property division, child support, custody and visitation, and spousal support will be settled. Thus, you might decide not to respond because you are okay with what your spouse is asking for. This situation is known as "default with agreement" because, technically, the case will be in default as you did not respond, but you have a say in how issues are decided.
- File a response with a written agreement: Although you and your spouse might have agreed on divorce-related issues beforehand, you might still choose to file a response. This is known as an uncontested divorce. The case isn't in default because you are responding, but all or most issues have already been decided.
- File a response without a written agreement in place: If you and your spouse have not settled divorce-related issues outside of court and disagree on all or most matters, you can file a response letting the court know that you want a say in how the case proceeds. Known as a contested divorce, the process involves you and your spouse going to trial and having a judge make final decisions on various issues.
Consult with a family law attorney before deciding whether to file a Response. They can discuss what each of your choices will mean to you in detail.
Will Not Responding Stop the Divorce?
Both spouses do not have to consent to end their marriage in California, and the court will eventually terminate the marriage as long as one spouse wants a divorce. Therefore, refusing to file a Response will not stop the case from moving forward, but it will impact how involved you will be in the process. Remember, if you choose not to respond, a default judgment may be granted, and your spouse is likely to get what they asked for.
What Happens After Filing a Response?
The next step after filing a Response is exchanging financial data. You and your spouse must provide each other with a preliminary declaration of disclosure, which gives a "full and accurate disclosure of all assets and liabilities in which one or both parties may have an interest…" (California Family Code § 2103). The exchange must be done within 60 days after you respond.
The information included with the preliminary declaration of disclosure is used to make decisions about matters such as child support, spousal support, and property division. Furthermore, the court cannot finalize your divorce until the parties exchange their disclosures.
Schedule a Consultation with a Family Law Lawyer
At Bremer Whyte Brown & O'Meara, our Newport Beach team is here to deliver the compassionate support and clear guidance you need throughout your case. If you have been served with divorce papers, turn to us for legal representation.
Call our firm at (949) 229-8546 or contact us online today.