The Petition
Opens a file: Filing a petition for dissolution of marriage (divorce) simply opens a file at the courthouse and gives you a file number to use in the future. Nothing else will ever happen if no one files anything further. In fact, the court is obligated to close the case if no one files anything else within a 3-5-year period.
Petitioner and Respondent: In civil lawsuits, there is a “plaintiff” (the complainer, the one who is filing the lawsuit) and the “defendant” (the accused). These terms are emotionally loaded and judgmental. There are efforts by family law professionals to use more family-oriented language. So now we use “petitioner” (the one who files) and “respondent” (the one who theoretically “responds” to the petition). There is no significance to being the filer/petitioner; s/he does not get an upper hand by doing so. The terms are meant to be neutral.
“Service”: This term simply means that the Respondent has received copies of the Petition. Once the petition has been filed, a copy bearing a stamp from the court showing the date of its filing is given to the “Respondent”. In mediation and Collaborative Divorce, we do not hire a process server, or ask a friend to “serve” the “respondent”, both of which can feel adversarial and unpleasant to the receiver. Instead, it is generally mailed to the “Respondent” together with the Summons, any required local court forms, and a Notice and Acknowledgment of Receipt.
Notice and Acknowledgment of Receipt
What does it mean: This form simply says “Yes, I received a copy of the Petition. I don’t necessarily agree with anything it says, I’ve just gotten my copy”.
Next steps: The “Respondent” then signs and dates this form and gives it/mails it back to whomever sent it to him or her in the first place. The sender then submits it to the court for filing.
Why is it important: Once this form, signed and dated, is filed, the court has the ability to grant the divorce and to make orders that are binding on both the Petitioner and the Respondent. In mediation and Collaborative Divorce, the only orders the court will be making are those you agree to in your Marital Settlement Agreement, except for the Standard Family Law Restraining Orders explained below.
The Summons/Temporary Restraining Orders
This indelicately and unfortunately titled notice that “you are being sued” is simply a requirement whenever any “action” is begun in the court. There is no sinister intent in a family law matter.
Page 1: The first thing to notice is the statement that the “Respondent” has 30 days to file a formal Response. If you are in mediation or in a Collaborative Divorce, the Respondent will not need to file a response unless everyone agrees that it is necessary. It triggers another $435-$450 filing fee and in mediation and Collaborative Divorce we try to avoid that if possible. In most cases, the 30 days is “suspended” unless you and your partner/spouse agree otherwise, or you are no longer in a mediation or Collaborative Divorce.
Page 2: The second thing to notice is/are the Standard Family Law Restraining Orders. Once the Petition is filed, the “Petitioner” is bound by these orders. And once the “Respondent” has acknowledged receipt of the Petition, s/he too, is bound by them. However, these are simply between the two of you. There are no restraining order police running around looking for violations. You can “violate” any of these so long as you agree, but best to do so in writing. So, an example would be that one of you would like to use the joint savings to buy a car and sends the other person an email to that effect. If the other person emails back saying “fine”, there is no violation of a restraining order.
But you do need to read these carefully. If you wish to make a major transaction, travel out of the state with the children or change a beneficiary, let your partner/spouse/the professional team know and ask him/her to send you an email to consent so that the change or transaction can be by written agreement.
If you need help with any of the forms or in negotiating your Marital Settlement Agreement terms, visit the “Find a Professional” page.
Jennifer Jackson is an attorney and mediator practicing in Sonoma and San Francisco Counties. More information in her bio on the “Find A Professional” page.
Find professional on your own or let us help you start.