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LegalGems
LegalGems, Lawyer
Category: Family Law
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Experience:  Experienced Family Law Attorney
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My friend did a Pro Per filing of her Petition

Customer Question

My friend did a Pro Per filing of her Petition for Dissolution of Marriage. She and her husband have a agreed to divorce so its a joint petition for summary dissolution. They have one minor child (5 years old). She filed her Petition, Declaration-Uniform Custody Minor and Family Law Summons, as well as her and her husband's Agreement they signed related to dividing personal property and custody of the minor child. She filed on 29 June 2015. When she went online to check case status she saw that there is a hearing set for June 29, 2018 for a "non-appearance" case status. Why have they set the hearing 3 years out? Will nothing transpire on her case for that long a time? Was this an error by the Court, or is that hearing only in case the proceedings languish without action for that long?
Also, the court has her husband's first name which is correctly spelled "JIHUI" incorrectly hyphenated as "JI HUI" making it appear as if he has a first and middle name. Does she need to get this corrected by the Court Clerk, or leave it "as is" and nothing bad will happen as a result?
Thank you.
Alex
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.
Good Day! I'll do my best to assist you. Please remember: I only provide general information and a local attorney should always be consulted. A few minutes please as I review this for you.
Expert:  LegalGems replied 1 year ago.
Thank you for your patience. I caught a red flag in your original question and I wanted to verify before responding.
A summary Dissolution is only proper if there are No children. Please see Family code 2400(a)(3) located here:
2400. (a) A marriage may be dissolved by the summary dissolution
procedure provided in this chapter if all of the following conditions
exist at the time the proceeding is commenced:
(1) Either party has met the jurisdictional requirements of
Chapter 3 (commencing with Section 2320) with regard to dissolution
of marriage.
(2) Irreconcilable differences have caused the irremediable
breakdown of the marriage and the marriage should be dissolved.
(3) There are no children of the relationship of the parties born
before or during the marriage or adopted by the parties during the
marriage, and neither party, to that party's knowledge, is pregnant.
(4) The marriage is not more than five years in duration as of the
date of separation of the parties.
(5) Neither party has any interest in real property wherever
situated, with the exception of the lease of a residence occupied by
either party which satisfies the following requirements:
(A) The lease does not include an option to purchase.
(B) The lease terminates within one year from the date of the
filing of the petition.
(6) There are no unpaid obligations in excess of four thousand
dollars ($4,000) incurred by either or both of the parties after the
date of their marriage, excluding the amount of any unpaid obligation
with respect to an automobile.
(7) The total fair market value of community property assets,
excluding all encumbrances and automobiles, including any deferred
compensation or retirement plan, is less than twenty-five thousand
dollars ($25,000), and neither party has separate property assets,
excluding all encumbrances and automobiles, in excess of twenty-five
thousand dollars ($25,000).
(8) The parties have executed an agreement setting forth the
division of assets and the assumption of liabilities of the
community, and have executed any documents, title certificates, bills
of sale, or other evidence of transfer necessary to effectuate the
agreement.
(9) The parties waive any rights to spousal support.
(10) The parties, upon entry of the judgment of dissolution of
marriage pursuant to Section 2403, irrevocably waive their respective
rights to appeal and their rights to move for a new trial.
(11) The parties have read and understand the summary dissolution
brochure provided for in Section 2406.
(12) The parties desire that the court dissolve the marriage.
(b) On January 1, 1985, and on January 1 of each odd-numbered year
thereafter, the amounts in paragraph (6) of subdivision (a) shall be
adjusted to reflect any change in the value of the dollar. On
January 1, 1993, and on January 1 of each odd-numbered year
thereafter, the amounts in paragraph (7) of subdivision (a) shall be
adjusted to reflect any change in the value of the dollar. The
adjustments shall be made by multiplying the base amounts by the
percentage change in the California Consumer Price Index as compiled
by the Department of Industrial Relations, with the result rounded to
the nearest thousand dollars. The Judicial Council shall compute and
publish the amounts.
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2400-2406
http://www.courts.ca.gov/1241.htm
As for the original questions, a divorce takes 6 months from the date of service and filing of the petition; so it would appear that the 2018 date is an error, along with the misspelling of the name. Legally this is called a scrivener's error; the clerk can adjust both the name and the calendared hearing once notified - preferably in writing- of the error.
However, since a child is involved, a standard petition for dissolution would need to be filed, in order to effectuate a divorce.
I would urge your friend to go the family law facilitator for assistance in completing this form, in order to prevent further delays in obtaining a decree.
Customer: replied 1 year ago.

Sorry! I misspoke. Of course it was NOT a Petition for Summary Dissolution. It was a general Petition for Dissolution of Marriage. Does this change the answer?

Customer: replied 1 year ago.

So, you're suggesting a written request to correct the "scrivener's error" is better than going in person to the Clerk's window ask for the correction?

BTW, the self-help facilitators at the court really aren't too sharp, but thank you for the suggestion.

Expert:  LegalGems replied 1 year ago.
Yes, it can be hand delivered so simultaneously the verbal request can be made; but if the clerk fails to correct it, then the petitioner will have proof of attempt to have it corrected- and the judge will modify the order/decree to ensure that it is correct. (If the petition was completed incorrectly- as opposed to the clerk entering it incorrectly, then the petitioner can file an amended petition - please let me know if that is the case)
And I'm very glad to hear that it was not the Summary Petition!
Expert:  LegalGems replied 1 year ago.
Here is a link to help locate an attorney:
www.findlegalhelp.org and http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm
Of course, should you have other questions please do not hesitate to post here.
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