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CONTENTS OF THE CALIFORNIA DIVORCE COURSE (FULL EDITION)
The
second step in your regular divorce is to prove that your spouse
has been notified. To some people that may sound silly,
since they just finished telling their spouses, "Hey, I'm
divorcing your worthless butt," but you've still got to do
it. This actually goes back to the revolutionary war days
when the British had a nasty little habit of putting people on
trial without bothering to tell the people they were accused of
anything. Much easier to find them guilty that way. In our
system, you always have the right to know when there's any case
involving you, so that you have every chance to hire Perry Mason
and put on a good defense if you want to.
There are two ways that you can notify your spouse, under the California system. The first is usually described as having the papers served, and that's the way that most people go. Having the papers served means that any third party over the age of 18 who is not you, walks up to your spouse, hands him/her a copy of the petition and the summons, and then the third party swears that your spouse has been notified. If you live in the same town, you can have a friend or a relative do the job. If your spouse lives in another county or another state, then you hire a professional process server or a deputy sheriff to serve the papers.
The second way of proving that your spouse has been notified is by using a document called an appearance, stipulations and waiver. It contains a fair amount of legal gobbledegook which, when you boil it all down, says, "Yep, I've been notified, go ahead and rock and roll." You actually have to use this document if your spouse is in the service overseas, or is attached with the military overseas as a civilian aid. Despite the fact that it's a far friendlier approach than having someone served, most people don't use this approach. Why not? Money. In many of the clerk's offices they will treat this as a response from your spouse and charge you an extra filing fee. If you're using the waiver, instead of having your spouse served, just skip over the next section and read the section on using the waiver.
There are two ways that you can notify your spouse, under the California system. The first is usually described as having the papers served, and that's the way that most people go. Having the papers served means that any third party over the age of 18 who is not you, walks up to your spouse, hands him/her a copy of the petition and the summons, and then the third party swears that your spouse has been notified. If you live in the same town, you can have a friend or a relative do the job. If your spouse lives in another county or another state, then you hire a professional process server or a deputy sheriff to serve the papers.
The second way of proving that your spouse has been notified is by using a document called an appearance, stipulations and waiver. It contains a fair amount of legal gobbledegook which, when you boil it all down, says, "Yep, I've been notified, go ahead and rock and roll." You actually have to use this document if your spouse is in the service overseas, or is attached with the military overseas as a civilian aid. Despite the fact that it's a far friendlier approach than having someone served, most people don't use this approach. Why not? Money. In many of the clerk's offices they will treat this as a response from your spouse and charge you an extra filing fee. If you're using the waiver, instead of having your spouse served, just skip over the next section and read the section on using the waiver.
HAVING YOUR SPOUSE SERVED
If
you're going to have your spouse served, then you're going to
need two documents: the Proof of Service of Summons and
two blank Response forms. To fill out the proof of service,
go to http://divorcecalifornia.biz/forms_lite.html and download the forms called, "fl-115.pdf."
and, "fl-115 instructions.pdf." To print out two
blank response forms, open the document called, "fl-120.pdf,"
and print two copies. Then come back here to find out how to take
care of the rest of it. If you filed a property declaration (form
fl-160) with your petition, you also need to run off a blank of
that to send to your spouse.
Now, put a copy of the summons on top (never serve the original), the petition and any attachments you filed with the petition (such as a property declaration and a blank property declaration, child support or visitation packages, etc.) under that, and the two blank response forms under that. Then put the proof of service of summons on top of the whole shebang.
If you're having a friend or relative serve the papers for you, you just give them the package and ask them to sign and date the proof of service and return it to you once the papers are served. If it's a friendly divorce, where you are absolutely sure that your spouse won't evade being served, then you'll probably want to let him/her know that the papers are coming. If you think that there's any chance at all that your spouse might hide from your friend or relative, then don't tell him/her.
If your spouse lives a fair distance from you, you may have to hire a sheriff's deputy or process server to serve the papers for you. Usually the fee for that runs about 50 bucks, but it varies from location to location. If your spouse lives in a large city, a process server is probably your best bet, because they make their money by serving the papers as fast as possible, and the sheriff's offices frequently have back logs. If your spouse lives in a rural area, the sheriff's department is the best way to go.
To hire a process server where your spouse lives:
1) get on-line and type into a search engine, "Process server ________ county." If that comes up blank, then try looking for private investigators and bail bondsmen in the county.
2) call or email them and ask if they serve court papers. If not, ask if they can recommend someone who does.
3) ask how much they charge, whether they accept personal checks, and what their address is.
To locate a deputy where your spouse lives:
1) get out an atlas and locate the county seat where your spouse lives. If you don't have an atlas, you can find one at any library or book store.
2) get the phone number for the County Sheriff's office, either on their County web site or by calling the long distance information operator.
3) call the sheriff's office and ask for the civil section. Ask how much they charge to serve papers, whether they take personal checks, and what their address is.
You need to write a letter of instruction to the sheriff's office or process server. You can find a sample letter in the forms section at http://divorcecalifornia.biz/forms_lite.html under, "sheriff's letter.doc."
Now, put a copy of the summons on top (never serve the original), the petition and any attachments you filed with the petition (such as a property declaration and a blank property declaration, child support or visitation packages, etc.) under that, and the two blank response forms under that. Then put the proof of service of summons on top of the whole shebang.
If you're having a friend or relative serve the papers for you, you just give them the package and ask them to sign and date the proof of service and return it to you once the papers are served. If it's a friendly divorce, where you are absolutely sure that your spouse won't evade being served, then you'll probably want to let him/her know that the papers are coming. If you think that there's any chance at all that your spouse might hide from your friend or relative, then don't tell him/her.
If your spouse lives a fair distance from you, you may have to hire a sheriff's deputy or process server to serve the papers for you. Usually the fee for that runs about 50 bucks, but it varies from location to location. If your spouse lives in a large city, a process server is probably your best bet, because they make their money by serving the papers as fast as possible, and the sheriff's offices frequently have back logs. If your spouse lives in a rural area, the sheriff's department is the best way to go.
To hire a process server where your spouse lives:
1) get on-line and type into a search engine, "Process server ________ county." If that comes up blank, then try looking for private investigators and bail bondsmen in the county.
2) call or email them and ask if they serve court papers. If not, ask if they can recommend someone who does.
3) ask how much they charge, whether they accept personal checks, and what their address is.
To locate a deputy where your spouse lives:
1) get out an atlas and locate the county seat where your spouse lives. If you don't have an atlas, you can find one at any library or book store.
2) get the phone number for the County Sheriff's office, either on their County web site or by calling the long distance information operator.
3) call the sheriff's office and ask for the civil section. Ask how much they charge to serve papers, whether they take personal checks, and what their address is.
You need to write a letter of instruction to the sheriff's office or process server. You can find a sample letter in the forms section at http://divorcecalifornia.biz/forms_lite.html under, "sheriff's letter.doc."
NOTE: THE SHERIFF'S LETTER IS IN MS Word formatting. If you don't have a word processor on your computer that can open those documents, such as word pad, MS Word, or Word Perfect, go to http://download.com and type in AbiWord. AbiWord is a very good, free word processor that will handle the .doc format.
When you write to the sheriff, you want
to tell them your spouses' name and address, but also want to
be as specific as possible. Tell them approximately how
tall your spouse is, color of eyes and hair, any visible distinguishing
marks, such as tattoos or moles. If you know what kind of
a car your spouse drives, mention it. If you know your spouse
always watches the
news at 6:00 o'clock, mention that that's a good time to find
him/her at home.
By far and away, the best place to have your spouse served is at his or her place of business. It's much harder for them to hide in the bathroom or pretend that they're not there. Many people are hesitant to do that because they don't want to embarrass their spouses, but it's still the best place. So, if you know where and when your spouse works, mention that, too. The more detail you can give them, the better the chance of success.
So . . .put together a package of papers in this order:
By far and away, the best place to have your spouse served is at his or her place of business. It's much harder for them to hide in the bathroom or pretend that they're not there. Many people are hesitant to do that because they don't want to embarrass their spouses, but it's still the best place. So, if you know where and when your spouse works, mention that, too. The more detail you can give them, the better the chance of success.
So . . .put together a package of papers in this order:
Letter of instruction with check or money order
attached - on top
Proof of Service of Summons with an envelope addressed to you, with postage on it - next
Summons - next
Petition and any attachments - next
Property Declaration and Blank Property Declaration if you had property or debts to divide
Income and Expense Declaration and Blank if you're asking for alimony
Blank Response forms - on the bottom
Proof of Service of Summons with an envelope addressed to you, with postage on it - next
Summons - next
Petition and any attachments - next
Property Declaration and Blank Property Declaration if you had property or debts to divide
Income and Expense Declaration and Blank if you're asking for alimony
Blank Response forms - on the bottom
Be sure to write in the case number that you were
assigned when you filed your case, on all of the copies. (Yes,
you can use a pen.)
Put them in
an envelope and mail them to the Deputy or the Process Server.
If you're a worrier, you may want to spend a few extra cents for
delivery confirmation, so that you know when they got there.
Get out your calendar and go about three weeks from the date that you mailed them - mark it. If you don't have your paperwork back by then, you should call and ask if there's a problem. Sometimes it just a matter of giving them a little more information on your spouse. Be VERY polite and don't start calling three times a day to bug them. It's very easy for your papers to get mislaid if you irritate them.
When you get your Proof of Service of Summons back, check to be sure that it was signed and dated by the process server or the deputy. (NOTE: Sometimes out of state sheriff's departments will just send back an affidavit swearing they served the papers, instead of filling out the Proof of Service of Summons. That's fine - just staple it to the Proof of Service.)
Get your calendar out again. Count out 30 days from the date that your spouse was served with the papers (and if it lands on a weekend or a holiday, go to the next working day.) Mark it. That's the date that you can request to enter default. Make a copy of the Proof of Service of Summons, then take the original down to Clerk court and have it filed. If you live in one of those jurisdictions where they gave you the original of the Summons when you filed, then you need to take that, too.
The next step is to exchange the financial disclosures. If you were able to have your spouse served, then you should go ahead and read that section.
If you weren't able to get your spouse served, you still have a couple of options. If you're convinced that he/she is at the address you gave the process server or sheriff, and is just hiding out, then you should go to the section on using substituted service. If you believe that your spouse has moved and you have no idea where he/she is, then you should go to the section on using publication.
Get out your calendar and go about three weeks from the date that you mailed them - mark it. If you don't have your paperwork back by then, you should call and ask if there's a problem. Sometimes it just a matter of giving them a little more information on your spouse. Be VERY polite and don't start calling three times a day to bug them. It's very easy for your papers to get mislaid if you irritate them.
When you get your Proof of Service of Summons back, check to be sure that it was signed and dated by the process server or the deputy. (NOTE: Sometimes out of state sheriff's departments will just send back an affidavit swearing they served the papers, instead of filling out the Proof of Service of Summons. That's fine - just staple it to the Proof of Service.)
Get your calendar out again. Count out 30 days from the date that your spouse was served with the papers (and if it lands on a weekend or a holiday, go to the next working day.) Mark it. That's the date that you can request to enter default. Make a copy of the Proof of Service of Summons, then take the original down to Clerk court and have it filed. If you live in one of those jurisdictions where they gave you the original of the Summons when you filed, then you need to take that, too.
The next step is to exchange the financial disclosures. If you were able to have your spouse served, then you should go ahead and read that section.
If you weren't able to get your spouse served, you still have a couple of options. If you're convinced that he/she is at the address you gave the process server or sheriff, and is just hiding out, then you should go to the section on using substituted service. If you believe that your spouse has moved and you have no idea where he/she is, then you should go to the section on using publication.
USING
THE APPEARANCE, STIPULATIONS, AND WAIVER
If you're
using the appearance, stipulations, and waiver approach to notifying
your spouse, then you'll need to prepare a couple of fairly easy
forms: fl-130.pdf and POS-015.PDF. You can find those
forms and the instructions for filling them out in the forms section
at http://divorcecalifornia.biz/forms_lite.html .
Once you've filled them out, you want to put together a package of documents in this order:
Once you've filled them out, you want to put together a package of documents in this order:
-Summons on top (be sure you send only a copy and
not the original);
-Petition next;
- Any extra forms which you may have filed with your petition, such as a property declaration;
- a blank property declaration, if you filed one;
-the appearance, stipulations, and waiver form (fl-130) and a copy of it for your spouse;
- Two blank Response forms (fl-120.pdf)
-Petition next;
- Any extra forms which you may have filed with your petition, such as a property declaration;
- a blank property declaration, if you filed one;
-the appearance, stipulations, and waiver form (fl-130) and a copy of it for your spouse;
- Two blank Response forms (fl-120.pdf)
Be sure
to write in the case number that you were assigned when you filed
your case on all of the copies. (Yes, you can use a pen.)
Be sure that you've signed the Appearance,
Stipulations, and Waiver form yourself.
You'll also
want to write a brief note of instruction for your spouse, telling
him/her to sign the Appearance, Stipulations, and Waiver form,
and return it to you.
Now, put them
all in a manilla envelope, with a return envelope with your address
enclosed. Close it up and address it to your spouse.
You're going to be using a process here called service by mail,
which means that you're just mailing the documents to your spouse,
but the package can't be mailed by you.
Take the envelope with all of the documents to the post office and mail it for you. If you're mailing it within the state of California, just send it by regular mail. If your spouse is overseas with the military or lives in another state, mail it certified, return receipt requested. Then your friend or relative should sign the proof of service and return it to you. Make a copy of it and put it in a safe place.
Within a couple of weeks, you should receive the Appearance, Stipulations, and Waiver form and the Notice and Acknowledgment of Receipt back from your spouse. Take the original and the summons down to the court house to file them. NOTE: unless your spouse is in the military, you may have to pay an extra fee to file this document.
Take the envelope with all of the documents to the post office and mail it for you. If you're mailing it within the state of California, just send it by regular mail. If your spouse is overseas with the military or lives in another state, mail it certified, return receipt requested. Then your friend or relative should sign the proof of service and return it to you. Make a copy of it and put it in a safe place.
Within a couple of weeks, you should receive the Appearance, Stipulations, and Waiver form and the Notice and Acknowledgment of Receipt back from your spouse. Take the original and the summons down to the court house to file them. NOTE: unless your spouse is in the military, you may have to pay an extra fee to file this document.