Tuesday, February 22, 2011

WHAT IS THE TIME LIMIT TO SERVE DIVORCE PAPERS?

The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: Is there an expiration date on divorce paperwork that is filed in California? I filed for divorce from my wife February 2010. In that same month I also served her. I was told that I had to give her time to respond. After a month with no response, I returned to the court house and explained my situation. From my knowledge, if she does not respond in the given amount of time, her signature could be excluded. And I would be able to continue to follow through with the divorce. But upon being seen at the courthouse, the front desk told me that I would not be able to continue without her paperwork. After continuous tries to reach her, they all failed. But in February of 2011, a family member reached her. She has confirmed that she received the paperwork when I originally sent it. She just did not bother with it. Now she is going to send me the signed paperwork. But the problem is that I am currently deployed in Afghanistan. I am to return in March of 2011. My question is, am I going to have to file the paperwork again? Or did I even have to wait for her paperwork to continue on with my divorce?

ANSWER: There is an "expiration date" for the service of the Summons in California.

Service must be made within two years of the filing of the Petition, pursuant to Code of Civil Procedure Section 583.420(b), or the case can be dismissed by the Court. The local rules of the county in which the action is filed may prescribe a shorter time.

Parties are not permitted to serve process on other parties in the same action, whether personally or by mail. Service may be made by a person at least 18 years of age who is not a party to the action.

If you mailed the papers to your wife with a Notice and Acknowledgment of Receipt of service to sign and return to you, and she failed to sign and return that document to you, your wife hasn't been served.

Even if your wife returns the signed Notice and Acknowledgment of Receipt to you, the court clerk may not accept it without a signed Proof of Service by Mail by the person who mailed the papers to your wife.

As noted above, if you were the person who mailed the papers to your wife, you wouldn't be able to provide the court clerk a proper Proof of Service by Mail, since you are a party. If the court clerk does accept and file the Notice and Acknowledgment of Receipt without a Proof of Service by mail, it may suffice, but for your information, it shouldn't suffice if you did the mailing.

If you are unable to get proper service upon your wife by mail and Notice and Acknowledgment of Receipt, you or your Family Law Attorney should hire a process server to personally serve conformed copies of the Petition, Summons, the Declaration under UCCJEA (if there are children), and a blank Response and a blank Declaration under UCCJEA on your wife (if there are children), and upon service, you or your Family Law Attorney should promptly file the proof of personal service with the Court, with a copy for the Clerk to conform and return to you. Your wife doesn't have to sign anything to be served in that manner, and assuming that you timely handle the service, you won't need to re-file a divorce case.

You should retain a Family Law Attorney to handle the case for you and advise you regarding what needs to be done in the case, especially due to the fact that you are based outside of the U.S.

Once your wife is served with process, it depends upon how or if she responds to the Petition as to how the case will proceed. If she doesn't respond, your Family Law Attorney would file a Request to Enter her Default, and once granted, she will not be able to respond or participate in the case. If she does respond, you should have an experienced Family Law Attorney to counsel and represent you, to determine what to do and when to do it in the divorce case.

This blog is brought to you by Los Angeles Divorce Attorney DONALD F. CONVISER, a Certified Family Law Specalist in California since 1980.

2 comments:

Unknown said...

my crazy husband has been hiding on the Indian Reservation and I havent found anyone who is willing to serve him divorce papers. He works out of state sometimes. Nobody would serve him and tribal police wont get involved or the sheriffs. What do I do? (DV Case)

Unknown said...

My wife filed for divorce with the court but they told her she needed to fill out other paperwork and file them also with the court. She has yet to finish the paperwork its been at least 7 months since she first filed the first papers. My question is. Is there a time limit for her to get the rest of the paperwork turned in to the court? And can I file my own divorce papers if there is a time limit.

Any help would be greatly appreciated. Thank you