7. Filing Divorce Complaint – What forms are used to start the divorce?

California has a Judicial Council that has developed forms to fill out to file to dissolve a marriage, domestic partnership, legal separation, annulment, paternity action, or for a domestic violence restraining order. The forms required in a dissolution of marriage are as follows:

  1. Petition (Judicial Council Form FL-100);

  2. Summons (Judicial Council Form FL-110);

  3. Declaration under Uniform Child Custody Jurisdiction Enforcement Act (Judicial Counsel Form FL-105);

  4. Income and Expense Declaration (Judicial Council Form FL-150);

  5. Property Declaration (Judicial Council Form FL-160);

  6. Declaration of Disclosure (Judicial Council Form FL-140);

  7. Schedule of Assets and Debts (Judicial Council Form FL-142);

  8. Declaration Regarding Service of Declaration of Disclosure (Judicial Council Form FL-141);

  9. Notice and Acknowledgment of Receipt (Judicial Council Form FL-117);

The San Diego Superior Court has downloadable form packets for each type of family law case. A complete list of these form packets may be found at: http://www.sdcourt.ca.gov/portal/page?_pageid=55,1524480&_dad=portal&_schema=PORTAL

San Diego Superior Courts require one addition local form entitled “Family Law Certificate of Assignment – Venue Declaration” (SDSC Form D-049) that is used to determine which location the matter will be assigned (downtown, South Bay, East County, or North County).

In every Judicial Council form, there will be an indication in the bottom left corner as to whether the form is mandatory or not. The words “mandatory” or “adopted” in the bottom left corner mean that form must be used for that particular matter. The word “approved” in the bottom left corner means the form is permitted, but the filing attorney or party may also utilize “pleading paper” to submit the information. Pleading paper is generally used when the form does not have enough space to provide the appropriate information. There are format requirements for pleading paper (Cal. Rules of Court, Rule 2.100 et seq.).

Attorneys and other legal services utilize software called One Legal to electronically file the forms and pleadings with the San Diego Superior Court. Self-represented parties may still file original documents with the Clerk of the Court in the downtown, South Bay, East County, or North County branches depending upon the zip code where the petitioner resides.
In all new matters besides domestic violence restraining orders, a filing fee is required to be submitted when a new family law matters such as a divorce is initiated. Currently, the filing fee to initiate a petition for dissolution of marriage or domestic partnership, legal separation, or nullity is $435 (Cal. Gov. Code §§ 70670(b); 70602.5; and 70602.6). The fees are increased from time to time (typically on the first of the year). Either party may apply for a waiver of filing fees by submitting a form titled “Request to Waive Court Fees” (Judicial Council Form FW-001) and a proposed Order on Court Fee Waiver (Judicial Council Form FW-003). There are instructions with the fee waiver package that will help determine whether or not the fees are likely to be waived (Judicial Council Form FW-001).

Once the initiating petition is filed and the filing fee either paid or waived, the San Diego Superior Court will place a seal on the original Summons and keep it in the court file (Cal. Rules of Court, Rule 5.50(a)). A copy of the summons and related documents must be served on the respondent. The person who serves the documents filed with the court must be 18 years of age or older and not a party to the case (i.e. not the petitioner). The third party then serves the documents on the respondent, completes a proof of service, and the petitioner must return the proof of service to the court (see Judicial Council Form FL-115) within 60 days of service (Cal. Code Civ. Proc. § 583.210(b)). The best way to serve documents is to have them personally handed to the respondent by an adult third party, but there are alternatives available. For instance, the respondent may simply sign a form indicating acceptance of the documents, or in extreme cases, service may be made by publication in an approved local newspaper. Once the documents are deemed served, the respondent has 30 days to file a response or motion (Cal. Rules of Court, Rule 5.62; Cal. Code Civ. Proc. § 418.10).

Both parties should be aware that once a summons and petition are filed in a dissolution, legal separation, nullity, or to terminate a domestic partnership, an automatic temporary restraining order comes into play (Cal. Rules of Court, Rule 5.50(b); Cal. Fam. Code § 233). This is not the type of restraining order related to a domestic violence matter; rather, it is a restraint on certain conduct of the parties with regard to assets, debts, and any children. Once the matter is filed, the automatic orders go into effect for petitioner. Once the respondent is served, then the automatic orders go into effect for the respondent. The parties may not borrow, sell, cash-out, transfer, or otherwise dispose of any property other than in the ordinary course of business, to pay reasonable attorney fees, or for the necessities of life (Cal. Fam. Code § 2040).

While this process may seem simple, an example will show how complicated it can become. Pam and Rob have been married for 20 years when Pam, unbeknownst to Rob, files for a divorce. Pam is concerned with how Rob will take the news and decides to wait a little bit to have Rob served. Meanwhile, Rob still doesn’t know about the divorce being filed, but after 20 years he knows his wife, and he knows she’s up to something. Rob decides to drain the marital bank and savings accounts, cashes out his 401k, and changes beneficiaries on his life insurance. Pam goes to the ATM one day and finds out all the money is gone. Pam decides what’s good for the goose is good for the gander and sells a third vehicle the parties owned together and pawns all her jewelry.

Pam should have carefully read the summons that she had filed. It does not permit her to sell anything regardless of whether it will be classified as community property (all property acquired during marriage is community property with two exceptions discussed later) or separate property. Rob may either choose to pursue a contempt of court action for Pam’s transgressions, or he may seek temporary control of the funds through a request for order hearing with the court (Cal. Rules of Court, Rule 5.14) and may be awarded attorney fees in connection with such a proceeding (Cal. Fam. Code § 271). Rob, on the other hand, acted lawfully as he had not been served with the summons and petition. Rob ultimately must account for all of the funds he cashed out and may be required to change the life insurance beneficiary back to Pam, but in the meantime Rob will retain control of the funds. If Pam had sold the car and jewelry, then filed the petition for dissolution, her actions would have been lawful.

It is important to plan for the divorce rather than acting quickly on emotion. An experienced family law attorney can help with pre-divorce planning to minimize the financial impact of the simple act of filing a petition for dissolution of marriage or domestic partnership, nullity, or legal separation.