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socrateaser
socrateaser, Lawyer
Category: Family Law
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Experience:  Retired (mostly)
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Im trying to finalize a divorce in CA. There are no assests

Customer Question

Im trying to finalize a divorce in CA. There are no assests or debts to split. 4 minor children are involved and we have no agreement on visitation. I have filed the following forms fl-100,110,115, 120,A, 160,165. There is a child support order filed. Recently I filed an order to show cause to get mediation started for the visitation because we are not on speaking terms. I have not been able to serve him with theses papers. We missed mediations and I went to the courthouse to let them know I was unable to serve him. They told me to go to my court date and explain to the judge the situation. What else do I need to do the finalize the divorce? What others forms need to be filed?
Submitted: 5 years ago.
Category: Family Law
Expert:  socrateaser replied 5 years ago.
Hi,

The answer to which forms are needed, depends on the exact status of the case. Please answer the following questions:

1. Has your spouse been personally served with the initial petition for dissolution (FL-100), and accompanying forms?

2. If yes, then has your spouse filed a response to the petition (FL-120)?

3. Please explain what you have tried re serving your spouse and why this has not succeeded?

Thanks in advance.
Customer: replied 5 years ago.

Q. 1 yes- at the time he had a job and i had him served there.

Q. 2 no- he didnt respond at all.

Q. He lives on a gated private property that I cannot go on without his permission. I have asked him repeatedly to meet in town so that I can serve him. I was told that neither the sherrif nor a process server can go on private property with his permission. He has no job outside his home. He had not seen the kids since I filed the order to show cause. Maybe so I can't get him served at visitation.

 

Expert:  socrateaser replied 5 years ago.
Code Civ. Proc. 415.21, provides:

  • a) Notwithstanding any other provision of law, any person shall be granted access to a gated community for a reasonable period of time for the purpose of performing lawful service of process or service of a subpoena, upon identifying to the guard the person or persons to be served, and upon displaying a current driver's license or other identification, and one of the following:
  • (1) A badge or other confirmation that the individual is acting in his or her capacity as a representative of a county sheriff or marshal.
  • (2) Evidence of current registration as a process server pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code.
  • (b) This section shall only apply to a gated community that is staffed at the time service of process is attempted by a guard or other security personnel assigned to control access to the community.

In other words, you can hire a private professional process server, or have the sheriff serve process, and he/she can enter the gated community -- period, end of story.

That said, if your husband has not responded to the petition, then you are entitled to a default judgment of dissolution. I'm taking you at your word that there are no assets to divide, but just to make sure, if you did not enter into a premarital agreement with your husband that keeps all earnings during marriage separate, then one half of every dollar that your husband earned during your marriage is yours!

If you think that may be a lot of money, then you may want to hire a lawyer, rather than attempt to enter a default claiming no community property. If yes, then I will tell you how to get your default judgment.

Please let me know if that's still the way you want to go with your case.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 5 years ago.
Based on what you have said and what I've already been told I should be able to get a default judgement. I am confused on what forms I need to file to get that judgement. There are no assets because he lost everything when his business filed for bankruptcy last year. The house that he owns, the kids and I still live in is in forclosure right now.
Also does my lack of parenting plan delay this process or it's that a separate issue?
Expert:  socrateaser replied 5 years ago.
Also does my lack of parenting plan delay this process or it's that a separate issue?

A: You can submit a parenting plan along with your default judgment paperwork. Since your ex appears unwilling to respond to the dissolution petition or otherwise appear in the matter, the court will grant whatever you request.

That said, if you will permit me about an hour, I will compile the necessary info for you to file the default (also, I need to eat lunch).

You don't need to wait -- the system will send you an email when I post my Answer.

Please post a reply to this Answer -- which will kick it back into my inbox so that I can Answer when I return.

Thanks for your understanding and cooperation.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 5 years ago.
Okay thanks
I'm going to go running while I wait.
Expert:  socrateaser replied 5 years ago.
The Judicial Council (JC) recently updated its website, and I observe that it contains a section for a "true default" dissolution, which is your circumstance, based upon your stated facts.

It would be silly for me to "reinvent the wheel," here so, let's use the JC info as much as we can. I will cut and paste the necessary forms, and I will start from the beginning, as if you have not done anything at all prior to this conversation.

Fill out the petition forms (since you are starting this case, you are the petitioner):
  • Petition — Marriage (Family Law) (Form FL-100). On this form, you give the court some basic information about your marriage, and you ask for the orders you want the court to make.
  • Summons (Family Law) (Form FL-110). This form contains important information for you and for your spouse about the divorce or separation process. It also contains some standard restraining orders limiting what you can do with your property, money, and other assets or debts, as well as moving out of state with your children from your marriage. READ this form carefully!!

If you need more room on your petition to list your property and debts, use the following form:

If you have children under the age of 18 with your spouse, also fill out:

  • Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Form FL-105/GC-120).
  • If you want the court to make orders about custody and visitation, you can also fill out the Child Custody and Visitation Application Attachment (Form FL-311). It is an optional form (you do not have to use it), but you may find it helpful in making sure you do not leave anything out of your custody and visitation request. It contains a lot of detail about schedules for visits and holidays, as well as other details that can help you as you try to do what is best for your children.
Fill out the preliminary declaration of disclosure forms:
  • Declaration of Disclosure (Form FL-140), which is a cover sheet for your declaration of disclosure;
  • Schedule of Assets and Debts (Form FL-142); and
  • Income and Expense Declaration (Form FL-150),
    OR
  • Financial Statement (Simplified) (Form FL-155).

Read Which Financial Form — FL-155 or FL-150? (Form DV-570) to find out if you can use the simpler Form FL-155.


Fill out the judgment forms:
  1. Fill out these forms:
  2. If you are asking for custody orders, you can fill out any of the forms that may apply to your case
    Fill out the forms that apply, if any, and attach to your Judgment (Form FL-180):
  3. If you are asking for child support, fill out the applicable forms
    Fill out the forms that apply, if any, and attach to your Judgment (Form FL-180):
    • Child Support Information and Order Attachment (Form FL-342).
    • Income and Expense Declaration (Form FL-150) or a Financial Statement (Simplified) (Form FL-155);
    • Child Support Case Registry Form (Form FL-191);
    • Notice of Rights and Responsibilities — Health-Care Costs and Reimbursement Procedures and Information Sheet on Changing a Child Support Order (Form FL-192) (there is nothing to fill out with this form, but read it carefully);
    • Order/Notice to Withhold Income for Child Support (Form FL-195) (if you want your spouse’s or domestic partner’s wages garnished for child support). You can use the Instructions to Complete Order/Notice to Withhold Income for Child Support (Form FL-196).

Notes:

  1. The JC instructions state that you should make two copies of the final judgment (FL-180 and attachments) in addition to the original. I would make five copies of everything. Somehow it always seems to end up requiring 2-3 more copies of the judgment than you would expect.
  2. IMPORTANT: In a "true default," such as that which you are requesting, the court cannot order anything more than that which you originally requested in your petition (FL-100), because your husband would not have received any notice that you changed your mind about what you wanted. So, if, for example, you asked for joint custody in the petition, and now you want sole custody, then you would have to file an amended petition (FL-100) and have it personally served on your husband again -- or, the court cannot order sole custody. Then, you would have to wait 30 days, before you could file the request for default and your judgment (FL-165; FL-180).
  3. The parenting plan is not in the same category. You don't have to serve it on your husband to get the court to order it. However, you can't really expect him to follow it, either, because he won't know what it is. So, you may want to simply request that "visitation shall be reasonable, at petitioner's discretion," rather than to include a parenting plan.
  4. On Line 3 of the FL-140, there is a check box for a "statement of material facts." The JC doesn't provide a form for this, but it is required, and it trips up practically every self-represented litigant. The law requires that you declare under oath that you haven't hidden any assets and that you have not avoided any business opportunities while the dissolution is pending that could have been valuable to the community. Here is sample verbiage -- you must reproduce it on a separate page and attach it to the declaration of disclosure served on your husband:

PETITIONERSNAME v. RESPONDENTSNAME

Case No.: ????????

Statement of Material Facts and Income-producing Opportunities Disclosure


I, PETITIONERSNAME, do hereby declare that I am Petitioner in this action, and if called upon, I could testify competently to the matters set forth herein, of my own personal knowledge.

1. I have disclosed to Respondent all material facts and information regarding the valuation of all the assets that are community property or in which the community has an interest. The values contained the Schedule of Assets and Debts are correct to the best of my knowledge, except for those assets that are in the control, custody or possession of Respondent. I reserve the right to amend this Declaration of Disclosure upon discovery of the full valuation of assets. There are no other material facts affecting the value of these assets to the best of my knowledge.


2. I have disclosed to Respondent all material facts regarding debts and obligations which the community is liable, to the extent it is not Respondent’s separate debts and obligations. The debts maintained in the Schedule of Assets and Debts are correct to the best of my knowledge, except for those debts and obligations that are in the control, custody or possession of Respondent. I reserve the right to amend this Declaration of Disclosure upon discovery of the full nature and extent of said debts and obligations. There are no other material facts affecting these debts of which I am aware.


3. No investment, business or other income-producing opportunities have presented themselves to me since the date of separation.


I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.


Date:

By:
PETITIONERSNAME, Petitioner

-----------
Whew...that was a lot more work than I expected. I think that about covers it. Feel free to ask questions.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser and 5 other Family Law Specialists are ready to help you
Customer: replied 5 years ago.

Ok thank you so much. I do have a few follow up questions.

1. What is the difference between fl-311 and fl 341. Do I need to fill out both?

2. The county has already opened a child support case and he has orders in place already. Do I skip that part then?

3. I have already filed many of these forms previous to our conversations. I am assuming that I dont need to refile them.

4. My husband has a history of alcohol and drug use, which I suspect is still an issue. I has grave concerns about his ability as a father and caregiver. He only sees the kids about every three weeks, over night, on their request. I am planning to to move with the kids about 3 hours away early next year. How should that be handled now and in the future when I do move?

Expert:  socrateaser replied 5 years ago.

1. What is the difference between fl-311 and fl 341. Do I need to fill out both?

 

A: FL-311 is an application for a custody order as part of a motion or order to show cause to establish or modify custody orders. FL-341 is the actual custody order to be attached to a judgment or findings and orders after hearing (OSC/motion). If you are seeking custody orders as part of the default judgment, then you want FL-341 -- not FL-311.


2. The county has already opened a child support case and he has orders in place already. Do I skip that part then?

 

A: If the DCSS obtained a support order under a different case number, then you can state in FL-180, Line 4(m)(4), something like, "As ordered by DCSS v. PETITIONERSNAME, Case no. ?????? (??/??/????) (copy of order attached, at Exhibit #??)."


3. I have already filed many of these forms previous to our conversations. I am assuming that I dont need to refile them.

 

A: It really depends on the clerk and the judge. If everything is already filed, then you shouldn't have to refile anything. But, frankly, most family law judgments get kicked back to the filing party several times before it goes through, for any number of reasons. All you can do is file and then wait and see whether you get a Notice of Entry of Judgment -- or a sheet from the clerk with checkmarks about what the court wants before it will enter judgment.

 

4. My husband has a history of alcohol and drug use, which I suspect is still an issue. I has grave concerns about his ability as a father and caregiver. He only sees the kids about every three weeks, over night, on their request. I am planning to move with the kids about 3 hours away early next year. How should that be handled now and in the future when I do move?

 

A: If you are the primary custodian, and there are no orders preventing your relocation, then you can move, and you are not required to provide any notice to the other party. However, if the current custody/parenting orders provide a certain custody/visitation schedule, and your move frustrates the other parent's ability to exercise those rights, then you could be presumptively in contempt of court. Generally, when you want to move, the best thing to do is to file an OSC to modify parenting and then propose a plan that will permit the other parent the opportunity to continue exercising his/her rights.

 

However, if you obtain a default, and your judgment contains a plain that the other parent gets visitation at your discretion (as I previously mentioned), then there would be no contempt in your moving, because no matter where you move, you cannot frustrate the other parent's time -- as he has no time expressly ordered.

 

In sum, what you would do depends heavily on what sort of custody/parenting/visitation orders you put into place at judgment.

 

Hope this helps.

 

 


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!



 

 

Customer: replied 5 years ago.

Ok thanks for you help. I have a few more questions about custody and visitation.

 

If at this point we have nothing in writing or filed with the court on visitation and custody was filed as joint/joint. I did file a OSC to start mediation because he continually brakes our verbal agreements.

1. Should I now withdraw that and forget about it and go for the default instead? I hope that makes sense. I'm trying to do the best for my kids.

 

2. I think what you are saying is that if I go for the default and file the papers the way I want them and he doesn't like it its too bad for him for not speaking up before?

Expert:  socrateaser replied 5 years ago.

1. Should I now withdraw that and forget about it and go for the default instead? I hope that makes sense. I'm trying to do the best for my kids.

 

A: You don't need to withdraw the OSC. It will simply fall "off calender" if you can't serve your ex by the required hearing date. Or, you can call the clerk and ask to have the OSC taken off calendar. If it were me, I would simply file for a default. Custody can always be modified. Ultimately, it will be better if both parents are closely involved with their kids' upbringing (unless a parent is physically abusive). But, if you can't get your husband to come to the party at the moment, then you can simply move on without him.

2. I think what you are saying is that if I go for the default and file the papers the way I want them and he doesn't like it its too bad for him for not speaking up before?

 

A: "By George, she's got it!" -- Rex Harrison, as Prof. H. Higgins, My Fair Lady (1964).

 

Hope this helps.

 

 

Customer: replied 5 years ago.

I have another follow up question.

Im not sure how to fill out FL 141- Can you walk me through that step by step. It is very confusing. Thank you again for all your help.

Expert:  socrateaser replied 5 years ago.
You are petition in section 1. In section 2, you served the preliminary on the other party on ??/??/????. In section 3, you served the final on the same date as the preliminary, and you can indicate that on the declaration form FL-140. In section 4, you check (c): default proceeding.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 5 years ago.

hi,

I have a couple of questions regarding the fl 170 form. We have debt together but have agreed to pay our own debt and have agreed on spliting the cars and etc... How do I show that to the court. We dont want the court to make any judgement on assets and debt. So I guess my question is do I check 5 a? Or do I do I choose b?-- because I dont want the court to decide.

Expert:  socrateaser replied 5 years ago.
You would have to check 5(b)(2), because you don't have an agreement (assuming a default), and you have community property and debt.

Hope this helps.

NOTICE: My goal here is to educate the public about the law. Please help me in this effort by clicking Accept for my Answer to your Question.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!