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My wife has filed a divorce petition in first week of December, 2008 . She has not served any papers nor I have received any documents or summons from the court to respond. We are living separately since 15 July , 2008 . There are no children involved . I own a condo . What happens next . I found this out by calling the office of the county court where she lives out of pure curiosity .
The next step is you get served with something which begins the action.
Judy is correct, it sounds like although she hired an attorney and has petitioned for a divorce, she has not had you served as of yet. There could be a number of different reasons she hasn't yet. Maybe she is trying to get something taken care of before things get ugly or maybe she doesn't have the money to have you served yet, which would be kind of silly seeing as its not really that expensive to hire a process server. Or maybe she still owes a part of the retainer to the attorney before she can actually serve you. Have you asked her?
What happens next? Ah, nothing. Not unless she has the paperwork served on you. Of course, you don't have to wait for that if you don't want to. You can file your Response without being served and then inquire about how your local court processes these kinds of cases.Quote:
Originally Posted by koochi
There's a mistaken belief out there that if you file a divorce case everything just sort of happens automatically, like everything's on autopilot. It doesn't work that way. In California for example if you file for divorce and never serve the Petition and Summons and do nothing the case will just sit in the court's file storage room and gather dust and finally end up being dismissed in 5 years. So you have to make things happen yourself. That's the way it works.
Very wise advice Cadillac especially if he wants to get the ball rolling instead of waiting for the other shoe to drop
What state is this in ? Also what do you mean when you say.. " I own a condo ? "
Depending on the state you live in and how long you were in the marriage etc there is the possibility of lots of things happening. But like others have said since there is no service at this time there isn't much you can do but wait.
Im trying to figure out the logic in the " sounds like although she hired an attorney" part.Quote:
Originally Posted by kanicky73
In most states its not a requirement to hire one to file anything. She may have filed for her own protection thinking he was going to file first. We don't really know. Also we don't know that its going to get ugly. In many states divorce can be fast tracked if there are no children and its an agreed upon divorce ( mutual consent ) and both sides walk away equal ( according to a judge ). There seems to be a lot of assumptions going on.
As I said, if the OP wants to get things going with the divorce all he has to do is file a Response. He doesn't have to wait to be served. In fact, filing a Response is probably not a bad idea. Sometimes people are pretty sloppy about service of process: they will have a friend or some dummy slip the papers under a door at work or leave them under a windshield wiper of the person's car then, without even reading the proof of service form, just check off the box "personal service" and then file it with the court. The court's not going to know if the service was good or not until someone brings it to the court's attention and contests it. This all could lead to a default judgment and the need for this OP to later move to set aside the default and to challenge the validity of service. This has happened more than once in other cases so I don't know how wise it is to ignore this.
It's probably safer for this OP to file a Response just to prevent this from happening, if for no other reason.
Just my 2 cents worth.
The OP has choices for sure. Here is what I see at this time. Filing of Dec 2008. Unless there has been some overwhelmed court then no date may have been set because its been 90 days already. Personally I would at least get a copy of what was filed and read it over. See if it demands a response on an imidiate scale or further investigation. Also if they are represented ( lets say live in a small town ) you don't end up calling the ex's lawyer for advice. That's what I would do at this time so at least can be prepared and also to see if there is an automatic filing date for a hearing to set temporary orders in place.Quote:
Originally Posted by cadillac59
No matter what the court's policy is on times for service, no matter what sort of hearing the court may set upon filing of the petition, the court has no jurisdiction over the Respondent/Defendant unless and until there is proper service of process. That's what service does: it gives the court jurisdiction (i.e. the power to act) over the adverse party. Without it the court can do nothing. Nothing. The court's hands are tied so to speak. A default cannot be entered, no orders affecting the Respondent/Defendant can be made. It's that simple (this is basic Civil Procedure that applies in all civil and family law cases everywhere). It has constitutional ramifications: "no taking (making orders, etc) without DUE PROCESS OF LAW"--service is part of due process.Quote:
Originally Posted by califdadof3
Like I said, I'd be concerned about a phony proof of service; but, I agree the guy should get a copy of the petition to see what's going on.
I would get my attorney to review what has been filed, it is very possible they may have had it
1. served somewhere else
2. claim it was served but you never got it ( like pined to a door)
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