Can I finish my divorce in 2011?
September 2, 2011 10:46 AM   Subscribe

What happens if the "default clerk" kicks back a divorce?

Santa Clara County, but I'm guessing any California experience will be helpful. Not seeking legal advice, but legal "process" anecdotes. I already filed a petition, had it served and filed the proof of service. Then more than 30 days elapsed so we're in default (Respondent didn't respond). Now we (it's amicable) are doing a Default case with Written Agreement. We have 1 child and we both work-- there's no spousal or child support requested.

The family court clerk told me that due to the current backlog it would take 3 weeks to process the Request to Enter Default, then 6 weeks for the Judgement. My worry is what happens if there's a mistake or omission & the default clerk rejects a piece of paperwork. How long will it take to process with corrections? Does the case go back to the bottom of the pile & it takes another 6 weeks?

The window court clerk was as helpful as he could be (he can't give advice) & the lawyer I hired for advice on drafting the Agreement talked about the process, but 9 weeks is nothing to him: he's used to a glacial pace. I wish someone had blogged their California divorce, but I understand why no one has. I haven't even found discussion forums that go beyond people flailing helplessly and people pointing them to the California courts self-help center.
posted by morganw to Law & Government (4 answers total)
IANAL, but I can tell you that in Alameda County CA, my default judgement had an error, I refiled, and I was moved back to the bottom of the pile as it were.
posted by Zophi at 11:01 AM on September 2, 2011

Best answer: IANYL, TINLA. I feel your pain. The process is slow. Keep in mind that even though you may have stipulated to your default judgment, the court cannot grant judgment of a dissolution until 6 months have elapsed.

Make sure you have all the papers you need under both state and local rules which, at the least, require your Judicial Council form FL–170 (Declaration for Default or Uncontested Dissolution or Legal Separation, Proposed judgment forms and notices of entry of judgment (with stamped envelopes addressed to each party), and each party must submit a declaration of service of the requisite final declaration of disclosure and current income and expense declaration (or, if the final declaration has been waived , a declaration regarding service of the preliminary declaration of disclosure should be submitted). Stamped, self-addressed envelopes (SASE) should also be included for return of copies of all of the endorsed filed papers to each party.

The clerk will review them again, and may find additional errors. Check all of your forms with the Judicial Council website to make sure you're using the current forms. if you used an old form that has since been revised, you'll have to update your filing to the new form. Filings are processed in the order received. Unless the delay is their fault, the clerk probably can't expedite this for you.

Your experience may vary. Where I practice, the delay on entry of defaults is about 4-6 weeks. Some clerks are more anal than others. I've occasionally had papers returned to me where there was only a minor error. Don't beat yourself up about it. It happens to the best of us occasionally.

I understand you hired someone for "advice" for writing the judgment stipulation and/or marital settlement agreement. I have represented people on the wrong side of issues that arise when they had property and/or kids but went the route of a DIY marital settlement agreement and judgment. If you have property or children, these mistakes can sometimes be very costly. Consider splitting the fee with your ex to have a lawyer draft the papers with an eye to a fair disposition and to eliminating any future sources of argument or problems.
posted by Hylas at 1:56 PM on September 2, 2011

* I meant, 6 months from the date of service of the summons and petition on the respondent, but also keep in mind you have to be a resident of California for 6 months and Santa Clara County for 3 months or the clerk may reject your papers again.
posted by Hylas at 1:58 PM on September 2, 2011

Response by poster: > the court cannot grant judgment of a dissolution until 6 months have elapsed.

And there it is on a page I've read about 10 times:
You can't finish your family law case until you've served your spouse or domestic partner and filed the Proof of Service of Summons and other forms the court requires. Your divorce can't be final until at least 6 months after your spouse or domestic partner was served and the Summons and Petition have been filed with the court.
I hope the default clerk is merciful and points out any mistakes even though I filed early so when I re-file in November I have a good chance that everything's correct & we're done by year's end. I'd hate to file taxes as married for 2012.

> Don't beat yourself up about it.

Thanks. I'm trying.
posted by morganw at 4:38 PM on September 2, 2011

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