Petitioners Rights in a Divorce

By Elizabeth Rayne

Filing for divorce is often an individual's first encounter with the court process, which can be a daunting experience The petitioner starts the action by filing a petition with the court that states his request for a divorce and his reasons for seeking it, and then serves the document on the other party. As the case progresses, the petitioner has the right to amend the petition, seek remedies for the other party's failure to participate, and even withdraw the petition and cancel the divorce process entirely.

Filing for divorce is often an individual's first encounter with the court process, which can be a daunting experience The petitioner starts the action by filing a petition with the court that states his request for a divorce and his reasons for seeking it, and then serves the document on the other party. As the case progresses, the petitioner has the right to amend the petition, seek remedies for the other party's failure to participate, and even withdraw the petition and cancel the divorce process entirely.

Petition for Divorce

Either spouse can file a petition for divorce. The petition is usually filed in the county where the couple resided, or in the county where either spouse currently lives, and outlines the reasons why the petitioner wishes to end the marriage. As the petitioner, you may also include your desired terms of divorce, which may address spousal support, child support, property division, and the child custody arrangement.

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Default Decree

If the other spouse does not respond to your petition, you may be able to seek a default divorce decree from the court. In order to do so, you must follow your state's procedure for filling the initial divorce petition and serving the petition on the other spouse. The spouse has a specified amount of time to respond to the petition, usually around 30 days, that will be noted on the summons that accompanies the petition. After the time period has passed, you have the right to file for a divorce decree by default. You must prepare and file a request for default with the court, and typically request a hearing. If the judge approves your request for a default divorce, it is likely the court will also grant you everything you requested in your original divorce petition.

Divorce Petition Amendment

Depending on the timeline, the petitioning spouse has the right to amend the original divorce petition. A spouse may be interested in amending if circumstances change in a way that materially affects the case, such as a child turning 18 and a custody order no longer being necessary. State law may vary on how and when a spouse may amend the petition. Generally, you may file a motion to amend the petition at any time before the other spouse has answered the petition. If the other party has already responded, or the court has already scheduled a hearing, you may have to request permission from the court to amend the petition.

Contempt of Court

After the defendant has responded to the initial petition, both parties are required to follow orders issued by the court. If either spouse does not follow a court order, he or she may be ruled in contempt of court, which may lead to fines or jail time. If the court requires the parties to attend parenting classes or participate in mediation, for example, both parties must do so to avoid a potential contempt citation. A petitioning spouse has the right to file for contempt with the court any time the other spouse does not follow a court order.

Canceling the Divorce

If you change your mind about seeking a divorce, you have the right to file a motion to dismiss the divorce action. For example, you may file a motion to dismiss because you have reunited with your spouse. At any time before the divorce is finalized, the petitioner may file a motion to dismiss with the court. However, if you change your mind again in the future, you must start from the beginning with the divorce petition and pay filing fees again.

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What if My Wife Defaults in a Divorce in California?

References

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