jlai said:
I live in the state of California and was served a petition for dissolution of marriage by my wife with one minor children involved based on irreconcilable differences. I don't want to have a divorce since we just had a newborn that's about 7mths old and willing to try working things out. However, my wife had been avoiding me and refuse to engage in any type of conversation to remedy this situation. Do I have to go along with the divorce or can I still save this marriage.? How should I file my response?
My response:
Because California is a "No-Fault" jurisdiction, if one party to a marriage chooses to divorce, there is nothing to stop the divorce - - there is nothing that you, as the other party, can say in a "Response" or do that would stop a divorce. You can't force someone into counseling if they don't want to, even though the law affords every opportunity (for free) to save the marriage.
Once divorce is the only alternative, the only issues then to be decided by the court, or mutually agreed upon by the parties, are child support, visitation, and custody. Additionally, matters of Real Estate and Personal Property are decided by the court; however, this should be used only as a last resort. The court, as well as the law, encourage the parties to create their own marital settlement agreement. When the court gets involved in these matters, the parties are usually very dissatisfied with the outcome of such a decision.
Respondent’s pleadings and motions in a family law proceeding, including whether to make an appearance, and the response to a petition for dissolution or separation, should the respondent decide to answer. Motions, e.g., Strike, Demurrer, by the respondent, in lieu of or in addition to the response, are allowed to challenge the court’s jurisdiction or the venue of the proceedings, or to strike improper matter in the petition.
A responsive pleading, if any, in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties must be filed and a copy served on the petitioner within 30 days of the date of the service on the respondent of a copy of the petition and summons. [Fam C §2020; CRC 1227] The time may, however, be extended by stipulation of the parties or by order of the court. Further, the time for filing the response is ordinarily extended by the filing motions, with the exception of a motion to strike improper matter in the petition. No default may be entered against the respondent before expiration of the stated time to plead, including an extension granted by the court. [CCP §418.10(d)]
Until a request to enter default is filed, and a party’s "default" is entered by the clerk, a respondent is entitled to file a response, even though more than "30" days have elapsed following service of the summons and petition. The response may be filed at the same time as the filing of a motion to strike improper matter in the petition or a motion to quash the proceeding, or both. [CRC 1231]
It might be a good idea for you to either see an attorney, or buy a book on the subject of divorce from Barnes & Noble Booksellers.
Good luck to you.
IAAL
[Edited by I AM ALWAYS LIABLE on 06-29-2001 at 12:12 PM]
