Q. I am an in Pro Per dad getting tripped up by the rules pertaining to service in my divorce proceedings. I seem to get something wrong every time! Can you give us an outline of when to serve what, and upon whom?
MS, Corona del Mar
Dear MS - I am glad you asked the question. These things are hard to track, and even to hold in the heads of lawyers and their staff, so I'll endeavor to create a master list for serving and filing pleadings in disso and family law proceedings.
However, anyone who reads this needs to consider that different California counties have their own additional local rules and what I am providing here will include the California Code of Civil Procedure, Family Code, California Rules of Court, and possibly information pertaining to certain counties like Riverside. I'll come back to this Blog to add further layers in time, and I hope people will register to comment if I've missed something or there is some valuable pointer for others you think I've missed. You can check Local Rules by visiting the County website for every California jurisdiction I know of, and it may pay dividends for you to do so in your locale.
Overview of Civil Procedure Rules for Filing and Service of Divorce Proceedingsand Requests for Orders
- SUMMONS and PETITION for Dissolution of Marriage, Nullity of Marriage (Annulment), or Legal Separation (including Domestic Partnerships and Paternity actions but excluding Summary Dissolutions and Domestic Violence proceedings) - Unless a local rule in your jurisdiction provides otherwise in terms of status conferences and review hearings, you can file a Petition and sit on it without any requirement of service, subject to a three year dismissal rule which applies to civil actions generally [CCP section 583.210(a)]. Proof of service of the summons is supposed to be filed with the Court within 60 days after the time that service of the summons and petition must be served upon a "defendant". [CCP section 583.210(b)]. Please also note that this dismissal rule does not apply to marital dissolutions if there is an outstanding order for child support, spousal support, or bifurcated proceeding per Family Code section 2337 that was issued in that proceeding.
When the Summons issues, it contains Automatic Temporary Restraining Orders ("ATRO's) that repeat the prohibitions and permissions set forth in Family Code section 2040. Understand that the Petition, which is the mandatory Judicial Council Form FL-100, states at paragraph 9. just above where you signed that "I HAVE READ THE RESTRAINING ORDERS ON THE BACK OF THE SUMMONS, AND I UNDERSTAND THAT THEY APPLY TO ME WHEN THIS PETITION IS FILED." Hence, once you sign and file the Petition the ATRO's apply to you, whether or not you ever serve it, and until or unless the Petition is dismissed. This can expose you to claims of breach of fiduciary duty for violation of the TRO's (ATRO's) and other penalties, including contempt, and montary sanctions - including attorney fees (Family Code section 271; Cal. Rules of Court, Rule 5.14). The original Summons is not given to you by the Clerk, but stays in the Court file. You get a copy, (Cal.Rules of Court, Rule 5.50(a)(2)), including a certified copy upon request.
The ATRO's become effective upon the other party when the Summons and Petition are served. The other party is the "Respondent"; you are the "Petitioner" as the initiating party.
There are a number of ways by which the Summons and Petition may be served, but there are different potential consequences - specifically as to the ATRO's - depending upon the manner of service. For instance, as set forth in Cal.Rules of Court, Rule 5.68, service may be made by:
- Personal service per CCP section 415.10;
- "Substituted service" upon another adult per CCP section 415.20;
- Service by mail with a notice and acknowledgment of receipt per CCP section 415.30 (FL-117);
- Service on a person outside the State of California per CCP section 415.40;
- Service on a personal residing outside the United States under the Hague Convention; and
- Service by posting or publication in newspaper per CCP sections 415.50 and 413.30. However, service in this fashion may result in the ATRO's having no application to the other party per Cal.Rules of Court, Rule 5.50(b)(2). Please note that you need to get court orders to allow this manner of service. [See Cal.Rules of Court, Rule 5.72].
Proof of service of the foregoing must be filed with the Court clerk, at least before the hearing and before non ex-parte orders will issue. (Cal.Rules of Court, Rule 5.66). See Judicial Council forms FL-335(proof of service by mail) and FL-330 (proof of personal service).
- RESPONSES TO SUMMONS AND PETITION -
After service of the Summons and Petition, the Respondent has 30 days in which to file a Response, or a Motion to Quash the proceedings, per Cal.Rules of Court, Rule 5.62 (note the first sentence reference in 5.62 to C.C.P section 418.10, which is the motion to quash statute). PLEASE NOTE - many attorneys and judges do not understand this, so be prepared to cite rhyme and verse! If they do neither, you can file a Request to Enter their default in the proceedings so long as you have complied with Family Code section 2014, served them with your Preliminary Declaration of Disclosure (Judicial Council form FL-142) and filed the FL-141 (Declaration of Proof of Service of PDD) with the Court clerk.
It bears mentioning that many people in amicable dissolutions or other family law proceedings reach settlement agreements, in whole or in part, and that each party must pay a hefty filing fee to the government as their "first appearance fee". For that reason, many cases go by way of default, and this may be perfectly okay but it does include certain risks for the responding party - they won't be able to modify whatever agreements and orders thereon that issue without paying a first appearance filing fee (in August, 2013, this is $465 in many counties) AND in some situations they may be required to set aside the default to challenge their agreement later, most commonly where they seek to set-aside their property and debt division proceedings. I've written extensively about set-aside motions on this site, so if that is your circumstance I urge you to use our on-board search engine (or try the link) and to read those many articles.
Where the responding party has filed a Response, they are deemed to have been served with a copy of the Summons - including the ATRO's - and the Petition, and are therefore subject to the same penalties for violating ATRO's mentioned above as to the Petitioner.
The Response may be served by mail and does not need to be served personally upon the other party; indeed, once the action is underway and at least until final judgment, all further pleadings by either side may be served by mail - although any temporary restraining orders, or orders after hearings that you may need to enforce by contempt, should be personally served upon the other party IF they were not at the hearing where the orders issued.
- REQUESTS For ORDERS (RFO's) - RFO's must be filed using mandatory Judicial Council form FL-300, unless another Judicial Council form has been adopted for the specific motion or order to show cause (bifurcation motions, contempts, pension joinders, for example). The key statute in this maze to know for calculating service dates of motions and RFO's on parties to the proceedings are CCP sections 1005 and 1010, and they may be served by mail with two important exceptions [Cal.Rules of Court, Rule 5.92(a)(6):
- If the RFO seeks court orders pending the hearing or seeks an order that the other attend the hearing it must be served in the same manner as a Summons; and
- If the RFO is filed after Judgment or any other custody proceeding where a permanent order issued, it must be served in accordance with Family Code section 215.
CCP section 1005(b) establishes the following deadlines for service of papers and filing the proof of service with the Court clerk:
- Unless some other rule or statute applies, all RFO's or other motions must be filed and personally served at least 16 court days before the hearing. If served by mail to a party inside the State, increase service by 5 calendar days and if outside the State then add 10 days (and 20 days if outside the United States);
- If service is by overnight mail instead of snail mail, then add 2 days instead of 5;
- If the moving party chooses to reply to the other's responsive declaration or other pleadings, the Reply paperwork must be filed and served at leave 5 days before the hearing.
RESPONSIVE DECLARATIONS to RFO's must be filed with the Court clerk at least 9 court days and be personally served that day; otherwise, add 5 days for mailing by snail mail or 2 days for overnight delivery - counting back from the date of the hearing. This means that if you are serving Responsive paperwork by overnight mail, then you should served at the responsive declaration 11 court days before the hearing (you can still file it 9 court days before).
Note: The scope of relief that may be requested in responding papers is limited to the issues raised in the moving papers, usually by checking the boxes on the Judicial Council RFO; otherwise, a separate RFO by you is required. [Cal.Rules of Court, Rule 5.92(b)(2)].
Moving papers and responsive declarations should not exceed 10 pages in length, and the reply should not exceed 5 pages. [Cal.Rules of Court, Rule 5.111]. This count does not include the Income and Expense Declaration, property declarations, exhibits, or points and authorities. [Cal.Rules of Court, Rule 5.112.1].
If you are serving REPLY PAPERWORK by overnight mail, then it must be sent out 7 court days before the hearing (you can still file it 5 court days before). Per CCP section 1005(c) overnight mail must be reasonably calculated to ensure delivery to the other side not later then close of the next business day after the papers are filed.
When calculating calendar days, do not include the date of mailing, i.e., if you mail on the August 20th, don't include the 20th in your count but include the last day which must fall on or before the hearing date. When calculating court days, don't count the first day either and be sure NOT to count any days where the court may be closed by reason of budget problems, and obviously don't count weekends or court holidays. This can be a real trap, particularly with court closures. Where the last day falls on a holiday or a weekend, don't include it in the count.
Service by fax or other electronic delivery may only be made where the other party has agreed to accept service by this means, or the Court has ordered such service. [CCP section 1010.6(a)(2), (3)]. There needs to be a written confirmation of this agreement. [CCP section 1013(e)]. Fax service must include a notation of the date and place of the transmission and the number faxed to. [CCP section 1013(f)].
Personal Service upon Attorneys and/or Parties: If the other party is represented by an attorney who has appeared in the proceedings, service of RFO's, Responsive Declarations, and Reply pleadings may be made to the attorney by handing it to a person over the age of 18 years at their business or residence (if in the same county as the action) between the hours of 9:00 a.m. to 5:00 p.m. and if no person is in the office it may be left in a conspicuous place. [CCP section 1011(a)]. If a party is represented, it is a good idea to always serve the attorney to avoid requests for continuance of the hearing; don't play games with service! You do not need to serve both the attorney and the party, but you do need to serve the attorney. [CCP section 1014]. Personal service may also be made on the party by leaving it at their residence with a person over the age of 18 years between the hours of 9:00 a.m. and 6:00 p.m. [CCP section 1011(b)].
Note: Motions for reconsideration must comply with CCP section 1008 and be filed within ten days from the issuance of an order in open court, but otherwise follow the section 1005(b) service rules.
Contempt proceedings must be personally served upon the other party in the same manner as a Summons. [C.C.P. section 1016]. Service upon an attorney, unless he or she agrees to accept service by Notice and Acknowledgment of Receipt, is not adequate.
Meet and Confer required effective January 1, 2013: Cal.Rules of Court, Rule 5.98 now requires parties and attorneys to meet and confer to try to resolve or streamline the matter prior to the hearing, including exchanging all relevant documents. This rule doesn't seem to be getting enforced, however.
Orders After Hearings - Cal.Rules of Court, Rule 5.125 governs the preparation and timing of orders after hearings. Unless the court fixes a different time, the party directed to prepare an order after hearing should submit it to the other side for approval within 10 days following the hearing. Within 20 days they must approve it or object to it. If they fail to respond, then the party preparing the order may send it to the court with a "correspondence" explaining when it was served, the other's reasons if known for not approving it, whether meet and confer was attempted, and a request that the court sign it.
Author: Thurman W. Arnold III, CFLS
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