ExpertLaw.com Forums

Residency Requirements for a Divorce Case

Printable View

  • 06-20-2014, 04:37 PM
    notmyfault1311
    Residency Requirements for a Divorce Case
    My question involves a marriage in the state of: California

    Spouse filed for divorce after being a resident 4 months. He did not meet the residency requirements. Can the case be dismissed? If so, what do I have to file to dismiss it?
  • 06-20-2014, 04:49 PM
    jk
    Re: Residency Requirements for a Divorce Case
    how long ago was it filed and how did you respond to the suit, if you have?
  • 06-20-2014, 04:51 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    Filed in April 2014. Sent certified mail, I have not picked it up yet.
  • 06-20-2014, 04:58 PM
    jk
    Re: Residency Requirements for a Divorce Case
    I see by another thread of yours that there were multiple means of service used. Has the dog sled and carrier pigeon shown up yet?
    If service was considered valid and you did not dispute jurisdiction, that would mean you acquiesced to California jurisdiction.


    If you have not been "legally served", then until you are you don't do anything. Once served, if he has not met the requirements to file in California, you respond with a claim that California does not have jurisdiction due to a lack of residency of either party.

    Oh, are you a California resident? If so, then his residency doesn't matter.
  • 06-20-2014, 05:00 PM
    Dogmatique
    Re: Residency Requirements for a Divorce Case
    Any special reason you don't want the matter in CA?

    Quote:

    California residency requirements for divorce

    For married persons to get a divorce:

    You MUST meet California’s residency requirements. Either you or your spouse must have lived in:

    California for the last 6 months, AND
    The county where you plan to file the divorce for the last 3 months.
    - - - Updated - - -

    Quote:

    Quoting jk
    View Post
    I see by another thread of yours that there were multiple means of service used. Has the dog sled and carrier pigeon shown up yet?
    If service was considered valid and you did not dispute jurisdiction, that would mean you acquiesced to California jurisdiction.


    If you have not been "legally served", then until you are you don't do anything. Once served, if she has not met the requirements to file in California, you respond with a claim that California does not have jurisdiction due to a lack of residency of either party.

    Oh, are you a California resident? If so, then his residency doesn't matter.


    Exactly.

    It doesn't need both parties to meet the residency requirements.
  • 06-20-2014, 05:03 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    I am not a California resident. Spouse was not a resident when filing, but is a resident as of June 2014. The law says you must be a resident before filing, so can I still respond with a claim that California does not have jurisdiction due to a lack of residency of either party?

    Thank You
  • 06-20-2014, 05:05 PM
    jk
    Re: Residency Requirements for a Divorce Case
    yes but all they have to do is refile.

    to defend against it being in California, you would have to file in your home state and be able to defend a suit filed in California based on a valid action was already filed in another state.



    but as I said, if service by any of the other means is considered valid, you have been served and if you did not dispute the residency requirements, you acquiesced to California jurisdiction, even if the plaintiff could not have validly filed in California yet.
  • 06-20-2014, 05:09 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    Quote:

    Quoting Dogmatique
    View Post
    Any special reason you don't want the matter in CA?



    - - - Updated - - -




    Exactly.

    It doesn't need both parties to meet the residency requirements.

    I don't live in California.

    - - - Updated - - -

    Thanks JK!

    No dog sled and carrier pigeon yet, lol
  • 06-20-2014, 05:39 PM
    CourtClerk
    Re: Residency Requirements for a Divorce Case
    JK/Doggie... give me the cliff notes version.

    Was this person legitimately and properly served or not?
  • 06-20-2014, 05:43 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    Not served legitimately nor properly
  • 06-20-2014, 05:45 PM
    Dogmatique
    Re: Residency Requirements for a Divorce Case
    Quote:

    Quoting CourtClerk
    View Post
    JK/Doggie... give me the cliff notes version.

    Was this person legitimately and properly served or not?


    From the other thread, apparently served...several times.
  • 06-20-2014, 05:51 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    Quote:

    Quoting Dogmatique
    View Post
    From the other thread, apparently served...several times.

    Doggie - I said tried to serve... It is illegal in California for him to serve me by email or regular mail. He has to have someone else do it. I have not been served yet.
  • 06-20-2014, 05:53 PM
    jk
    Re: Residency Requirements for a Divorce Case
    Quote:

    Quoting notmyfault1311
    View Post
    Not served legitimately nor properly

    Based on your other thread, you may very well have been served. You need to investigate each of the various means of contact you specified in your other thread and determine if any of them fulfill the requirements to be valid service.
  • 06-20-2014, 05:56 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    I did... They don't. That is why he is still trying to serve me.
  • 06-20-2014, 06:00 PM
    jk
    Re: Residency Requirements for a Divorce Case
    Then you haven't been served and the time to respond has not begun to run. When served you can attempt to assert a lack of jurisdiction argument. I haven't chased any case law but it would not surprise me to see the courts denied the claim if the defendant was served after the time the plaintiff fulfilled the residency requirements

    there is no effective difference between the two situations if the defendant is not served until after the residency requirement was fulfilled.
  • 06-20-2014, 06:04 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    That sucks... It's people like me who obey the law and wait to fulfill residency requirements that get screwed and the liars of the world rule :grumpy:

    Thanks for your help
  • 06-20-2014, 06:35 PM
    jk
    Re: Residency Requirements for a Divorce Case
    Quote:

    Quoting notmyfault1311
    View Post
    That sucks... It's people like me who obey the law and wait to fulfill residency requirements that get screwed and the liars of the world rule :grumpy:

    Thanks for your help

    what is that supposed to mean? You can file suit in your home state if you want right now.
  • 06-20-2014, 06:41 PM
    Dogmatique
    Re: Residency Requirements for a Divorce Case
    Why do you believe service by mail and/or certified mail is illegal?


    Sure, it's not necessarily the best way, but they're both valid.
  • 06-20-2014, 06:52 PM
    jk
    Re: Residency Requirements for a Divorce Case
    here is California's own statement regarding service of a divorce suit upon a party residing in a different state:\

    http://www.riverside.courts.ca.gov/s...ptions4serving


    Quote:

    • What are my options for serving the other party with a copy of the divorce petition if they reside in another state or if I am not aware of their whereabouts?
      Out of State Service:
      Certified Mail. If the Respondent lives out of state, he or she can be served by mailing a copy of the Summons/Petition and all other filed documents by certified, return receipt mail to that person. In order for service to be valid the return receipt from the post office must be signed by the Respondent, not by any other person. If the Respondent does not sign for the documents, you will need to attempt either personal or substituted service.
      Acknowledgment and Receipt: This type of service is used on an out of state or out of country Respondent. With this type of service, the server mails to the Respondent a copy of the Summons/Petition and all other filed documents, along with two copies of the Notice and Acknowledgment of Receipt (FL-117) and a stamped, return envelope. The server, not the Petitioner, must complete the top portion of the Notice and Acknowledgment of Receipt. Service is deemed complete on the date the Notice and Acknowledgment form is signed at the bottom by Respondent. As with a Certified Mail receipt, this type of service is NOT VALID unless signed by the Respondent.
      If the Respondent does not complete, sign and return the Notice and Acknowledgment of Receipt form within 20 days of the mailing of the Summons/Petition and other filed documents, the Respondent can be liable for costs incurred in serving by one of the other valid service methods. The Petitioner must file a motion for reimbursement of these costs.
      Once the Notice and Acknowledgment of Receipt is signed and returned it must be attached toProof of Service of Summons form (FL-115) and filed with the Court.
      Note: You may avoid personal service if the opposing party agrees to be served by mail. Service by mail in place of personal service may be accomplished by using the Notice and Acknowledgment of Receipt method.
      Substituted Service: If you cannot get the Respondent personally served after 3 attempts, you may have your server leave a copy of the Summon/Petition and other filed documents at the Respondent’s place of business or residence. But, you must follow the legal requirements.
      This involves leaving the documents with a person who is in charge at the regular place of business or a competent adult (someone over 18) who lives at the residence of the Respondent. The server must inform the person of the general nature of the paperwork.
      Then, the server mails a copy of the paperwork to the same address where the papers were left, so either a residence or regular business address.
      Next, the server must fill out a “Declaration of Due Diligence”. This is a document that describes all the attempts that were made to serve the Respondent personally. The Declaration is usually attached to the Proof of Service of Summons form FL-115.
      Once service is complete, the person who performed the service will have to fill out a Proof of Personal Service and that will have to be filed with the court.
      Publication/Posting: When all else fails – personal service, substituted service, service by acknowledgment and receipt, service by mail, return receipt requested, you can apply to the Court for permission to serve by Publication or Posting. This method is generally used to serve people WHO ABSOLUTELY CANNOT BE FOUND.
      If you cannot locate the Respondent you may apply to the Court to serve by Publication or Posting. Before you can ask to serve by Publication or Posting you must make a good faith attempt to find the other party. This includes mailing a letter to the last known address to see if it comes back, talking to old neighbors, checking with relatives, going to the last known employer, checking the internet, checking with family and friends, checking to see if the person owns real property in the area by going to the County Recorder’s office and any other thing you think might help you find the person.
      Your attempts to find the Respondent are put in a “Declaration”. The packet for Service by Publication is available at the Court. So is the packet for Service by Posting and Mailing. To qualify for service by Posting and Mailing, you must be low income, meaning living below the poverty level. Generally, people who are receiving public benefits or qualify for a fee waiver use this method. If the court is satisfied that you did all you could to find the Respondent the Judge will give you permission to serve by Publication or Posting. If you don’t qualify for service by Posting, then you will request to serve by Publication. This means you place a legal advertisement in a newspaper that is most likely to give the Respondent actual notice of the case. For instance, if the Respondent’s last known address is in the County of Riverside you should place the legal advertisement in a Riverside County newspaper. The advertisement must be published once a week for 4 consecutive weeks and then service is deemed complete. This manner of service is complicated and can be very costly so it should be used only as a last resort.

  • 06-20-2014, 06:54 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    JK - I play by the rules... I am not a resident here until July.
  • 06-20-2014, 06:56 PM
    Dogmatique
    Re: Residency Requirements for a Divorce Case
    This is why I'm not entirely sure what OP hopes to gain by prolonging the inevitable.

    If she doesn't pick up the certified mail, he's going to do it via substituted service and if she still won't do anything, he's going to get everything he wants by default.

    Avoiding service is rarely a good idea.

    - - - Updated - - -

    Quote:

    Quoting notmyfault1311
    View Post
    I play by the rules... I am not a resident here until July.



    No, you're just not really understanding the service issue.

    Again I'm still not sure why you want to avoid service - it's going to happen whether you like it or not.
  • 06-20-2014, 06:59 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    it's not what I believe, it's the law. In California there are certain requirements that must be met and regular mail is not on the list.
  • 06-20-2014, 07:04 PM
    Dogmatique
    Re: Residency Requirements for a Divorce Case
    Please allow me to share a real world example of residency requirements and service.

    Mom upped and left the state - she went from Florida to Wisconsin - with their mutual child.

    Dad immediately filed to have the child returned pending a custody hearing, also stating that Mom shouldn't be allowed to file in Wisconsin because she was not legally a resident (and he was right).

    Within days, Mom had filed to have the matter heard in Wisconsin.

    This is where it gets all funky. Remember at this point Dad filed first, in FL. Mom filed afterwards, in WI. You'd think that WI would just say "Oops..sorry Mom, y'all have to go to Florida to sort this out", right?

    Nope.

    After many telephonic appearances and the back-and-forth between the two states, Wisconsin actually took jurisdiction and Florida waved g'bye to the matter.

    So you see, service is not automatically the be-all and end-all of the matter.
  • 06-20-2014, 07:09 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    The play by the rules comment was in answer to jk's question.

    - - - Updated - - -

    Thank you Dogmatique,

    I see what you mean.
  • 06-20-2014, 07:10 PM
    Dogmatique
    Re: Residency Requirements for a Divorce Case
    Quote:

    Quoting notmyfault1311
    View Post
    it's not what I believe, it's the law. In California there are certain requirements that must be met and regular mail is not on the list.


    And unfortunately for you, you're categorically wrong.

    Let's try the brains at Legal Zoom:

    http://info.legalzoom.com/serve-resp...nia-25102.html
  • 06-20-2014, 07:16 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    Quote:

    Quoting Dogmatique
    View Post
    And unfortunately for you, you're categorically wrong.

    Let's try the brains at Legal Zoom:

    http://info.legalzoom.com/serve-resp...nia-25102.html


    "service by mail must be performed by a person 18 or older who is not a party to the action. Parties in a divorce include the two spouses or domestic partners"

    I keep telling you he sent it, he is a party to the action - not valid - I am not wrong
  • 06-20-2014, 07:20 PM
    jk
    Re: Residency Requirements for a Divorce Case
    I don't get the point of all of this. Either you can file based on your prior state of residence, wait until you meet the residency requirements and file in California, or let the service take place and go forward with the divorce or dispute it based on lack of jurisdiction and make him file again, at the worst.



    what is the point if in the end, you get divorced and in California. Your actions show you to be a control freak that simply wants to give the other party a hard time about nothing.
  • 06-20-2014, 07:25 PM
    Dogmatique
    Re: Residency Requirements for a Divorce Case
    Quote:

    Quoting notmyfault1311
    View Post
    "service by mail must be performed by a person 18 or older who is not a party to the action. Parties in a divorce include the two spouses or domestic partners"

    I keep telling you he sent it, he is a party to the action - not valid - I am not wrong



    In other words you'll be just peachy if he gets his adult cousin to mail it?

    Great. Glad we sorted that out for you.
  • 06-20-2014, 07:36 PM
    notmyfault1311
    Re: Residency Requirements for a Divorce Case
    I believe jk answered my question and I am satisfied with the information jk provided.

    I have not further comments about who is right and who is wrong or name calling.

    You people are rude and you Doggie remind me so much of Stuey from "The Family Guy" I get nauseous every time you make a condescending comment about my questions.

    I just wanted my question answered plain and simple - not to be psychoanalyzed by two unlicensed therapist.
  • 06-20-2014, 07:57 PM
    Dogmatique
    Re: Residency Requirements for a Divorce Case
    Quote:

    Quoting notmyfault1311
    View Post
    I believe jk answered my question and I am satisfied with the information jk provided.

    I have not further comments about who is right and who is wrong or name calling.

    You people are rude and you Doggie remind me so much of Stuey from "The Family Guy" I get nauseous every time you make a condescending comment about my questions.

    I just wanted my question answered plain and simple - not to be psychoanalyzed by two unlicensed therapist.


    No hon, you wanted to see something that you didn't actually see here. Which is fine - but let's just be honest, shall we?

    Lest it needs to be said again:

    You can fight service.
    You are likely going to find that service is proper.
    You're still in the same spot; nothing has changed.

    (Incidentally, I'm sort of a cross between Stewie and Cilla Black with a hint of Jack Bauer. Sort of. :cool: )
All times are GMT -7. The time now is 01:27 PM.
Powered by vBulletin® Version 4.2.4
Copyright © 2023 vBulletin Solutions, Inc. All rights reserved.
Copyright © 2004 - 2018 ExpertLaw.com, All Rights Reserved