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Maverick
Maverick, Lawyer
Category: Family Law
Satisfied Customers: 6423
Experience:  20 years of professional experience
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Maverick, I 't know if I mentioned it before, but my

Customer Question

Hello Maverick, I don't know if I mentioned it before, but my husband is incarcerated. To my surprise, he filed a Response. However, He did not send my copy to the court first, a fellow inmate sent it to me. My husband did not send me ANY declarations.
Plus, he just sent me a personal letter to cancel his Response. I send him a declaration form to complete and send to the court. Question: Is the Response supposed to be sent to me from the court, after my spouse files it with the court? If he sent it to me
directly (without being stamped) after 30 days, is it in Default? My husband never sent me any declarations. How do I proceed to set a trial and the statement of issues?
Submitted: 2 years ago.
Category: Family Law
Customer: replied 2 years ago.
Since my husband is incarcerated; how can I file the FL E LP625 Memorandum to Set or the Statement of Issues since he will be unable to appear for the hearing/trial? I'm not even sure if he'll be able to be present on a phone. How can I proceed?
Customer: replied 2 years ago.
My husband sent me a personal letter saying that he is canceling his response and will not pursue anything from me. I sent him a blank declaration fl-030 to write what he said on; with a proof of service by mail to sent to me and the court. If he does this, will my case got to default? does this letter make a difference. What should I do?
Expert:  Maverick replied 2 years ago.
Is the Response supposed to be sent to me from the court, after my spouse files it with the court?
1. Normally the response/answer is sent to you directly from your spouse or his lawyer at the same time that he submits it to the court for filing with a certificate on the document that tells the court that a copy has been mailed to you.
If he sent it to me directly (without being stamped) after 30 days, is it in Default?
2. No. He just needs to send one on a timely basis to the court for filing and serve you with a copy which may or may not be filed stamped.
My husband never sent me any declarations. How do I proceed to set a trial and the statement of issues?
3. Family law cases are set for trial either (1) when the court deems the case to be at issue (an "at-issue order") or (2) when a party files a request for trial setting. Check your court's local rule on this.
For examples:
S.D. Super.Ct. Rules, Div. V, Fam. Law Rule 5.2.8.K--court's local "Family Settlement Conference At Issue Form" required to set long cause cases for trial after unsuccessful mediation.
S.F. Uniform Rule 11.11--filing court's local Family Law At-Issue Memorandum commences trial setting process for resolution of financial issues (custody/visitation calendared for trial only by court order);
L.A. Super.Ct. Rule 14.13--either party "may file" request for trial setting to set contested case for trial;
Santa Clara Super.Ct. Family Rule 6.A--request for trial not required "but may be filed" (except that custody/visitation calendared for trial only by court order);
But here is what I suggest you try:
Serve your spouse with Form FL-300 even though he is in jail. If he does not respond to the request, the court will likely grant your request for sole custody. If he does respond, the court may allow him to appear in court under some circumstances, or he can have an attorney represent him at custody or divorce hearings. However, since he cannot actually care for the child from jail, he won’t be awarded physical custody, but he can request to have his children brought to the jail for visitation. The judge will then consider whether this type of visitation is in the child's best interests.
http://www.courts.ca.gov/documents/fl300.pdf
The form is at the link above.
IF YOU DO NOT HAVE ANY CHILDREN AND JUST WANT A DIVORCE PROCESSED:
If your imprisoned spouse responds BUT NOW DOES NOT contest the divorce, THEN YOU JUST NEED HIM TO WITHDRAW HIS RESPONSE AND THEN THE JUDGE CAN GRANT YOU A DIVORCE JUDGMENT AFTER 6 MONTHS.
http://www.occourts.org/forms/local/l1137.pdf
At the link above you will find a list of the forms that need to be completed in Orange county that you can use as a go-by. If he truly does not contest the divorce, then he should fill these out with you and help you get them filed. If he contests any aspect of the divorce, you may have problems and delays unless the court is willing to issue an order to have him transported to court for one or more hearings.
Please remember to assign a feedback rating so JA will compensate me for my time. You are free to ask follow-up questions thereafter at no charge. Please allow up to 24 hours for a follow-up response if I am signed off.
If, for some reason, you are not satisfied with the answer, I would appreciate knowing why so that I can try to clear up any misunderstanding that may have taken place and still earn a positive rating from you. If you would rather obtain a refund of your deposit, just let me know and I will inform JA on your behalf. Finally, you may request me in the future by beginning the question with "THIS IS FOR MAVERICK".
Thank you for using Just Answer.
Customer: replied 2 years ago.
Hi. I filed in Sacramento County... I don't know if that makes a difference (Orange County). We have NO children. Question: I filed the FL-140, 141, 142, 150 as primary and final disclosures because I was "sure" that he would not file a response. Do I need to file them again? When I got the response I filed a mc031 Declaration with mc-025's as attachments as rebuttals (discovery) to refute his claims. What is the difference between a mc-030 and mc-031? Do I file the whole thing again on the mc030? I don't want to go to trial... I thought I have no choice. Is the FL-170 the form that my husband files to "withdraw his response"? If not, what form do I send him? Will the letter he wrote be valid proof that he wants to withdraw his response? Should I file it with a declaration? Lastly, is the court the one who will decide if a Order of Issue needs to be filed? If I send my husband the forms, and he doesn't do anything else... do I just wait until the judge decides if he will submit an Order?
Customer: replied 2 years ago.
I was just reading the FL-144 stipulation form... my husband did not file ANY declarations? At least I did not receive any... What happens if he does not file them? And he also did not file a waiver for the fee to file his response. He "checked" that I would pay it. Can I still file the FL-144? What do I do about this?
Customer: replied 2 years ago.
I want to refresh your memory... You answered questions for me in July about the "length of marriage and 10-year rule". I mentioned that I we have a signed legal separation agreement and have been legally separated since 2006. When I filed the attachments on the mc-031 with the mc-025 and mc-020 forms; I attached the separation documents, plus a Will and other documents. I was gonna file the form to request a separate trial before you responded. If my husband doesn't file (all/any) the papers... would this be the next step for me? The separate trial papers say that "we MUST meet in mediation to try to work out our issues". Will I have to go and visit him in prison to do that? With all of the documents that I submitted after his response, I would basically be resubmitting the "same" ones, if I have to file another attachment... Is it possible that the judge may make a decision when he reviews all that I have already filed; without me having to do this again, just going by what he has already received? And (hopefully) my last question is... Do I need to wait until I hear from the court or follow your first suggestion, first?
Expert:  Maverick replied 2 years ago.

I opted out of this to see if another expert who has more experience in this area can assist you. Your deposit is still in tact and you need not do anything further on your end.

Customer: replied 2 years ago.
Since you gave up on me, who will assist me now?
Customer: replied 2 years ago.
I just received a Proof of Service by Mail FL-335 and a MC-030 Declaration that my husband is withdrawing/canceling his Response and asking the judge to allow this case to move into Default. Does this mean that I can move forward as if it went into Default originally? How do I proceed?
Expert:  Maverick replied 2 years ago.

Yes, what he has filed should work as it is an admission to permit a default. So, now take copies of what he filed and attach them as an exhibit to you motion for default. These are the forms you will need:

  • Form FL-165;
  • Form FL-170;
  • Form FL-180;
  • Form FL-190;

If child custody, property division, alimony, or child support is an issue that you will need many more forms. Please let me know if you need help with those and which ones and I will send you an offer for additional services. Or, you can ask for me and submit a separate follow up question.

Expert:  Maverick replied 2 years ago.

Dear Vaberco:

Please see answer in pane above. I have been out of commission for about a month due to tech issues and recurring computer problems. Sorry for the delay.

Please remember to assign a feedback rating so JA will compensate me for my time. You are free to ask follow-up questions thereafter at no charge. Please allow up to 24 hours for a follow-up response if I am signed off.

If, for some reason, you are not satisfied with the answer, I would appreciate knowing why so that I can try to clear up any misunderstanding that may have taken place and still earn a positive rating from you. If you would rather obtain a refund of your deposit, just let me know and I will inform JA on your behalf. Finally, you may request me in the future by beginning the question with "THIS IS FOR MAVERICK".

Thank you for using Just Answer.

Customer: replied 2 years ago.
For the exhibit, is there a form; i.e. mc025 (attachment) that I would use as a cover sheet, and mark as Exhibit A that I would be attaching to the motion for default? can I file all of these forms together?
•Form FL-165;
•Form FL-170;
•Form FL-180;
•Form FL-190;