When your spouse files a divorce petition and you are served with the petition and summons, you have the option of filing a response (form FL-120). The language on the summons urges you strongly to file a divorce response. It gives you 30 days to file a response at the court and have a copy served on the petitioner. It warns that if you don’t file a response on time, the court may make orders affecting your marriage and property and custody of your children.
File a Divorce Response?
There are two main advantages of filing a divorce response:
- it establishes you as an equal participant in the divorce proceeding with equal ability to pursue any legal procedure, and therefore
- it protects you from the possibility of the petitioner requesting a default judgment from the court and being granted (by default) what was requested in the petition.
Primarily because of this protection, family law attorneys I have spoken with generally advise filing a response. Many if not most online “do it yourself” California divorce sites also include filing a response in their instructions.
However, many people do not bother to file a divorce response. Here are some of the reasons:
- there is a filing fee (currently $435), which is in addition to the $435 filing fee for the petition.
- they have no intention of filing any motions with the court, preferring instead to work out a negotiated divorce agreement covering all the bases.
- there may be no significant property or debts to divide, no minor children and no spousal support to be arranged.
- some people trust their spouses not to try to sneak through a default judgment.
- sometimes the way the petition has been written precludes the possibility of a default judgment for the petitioner.
As regards the last point, attorney Ed Sherman in his best-selling book “How to Do Your Own Divorce in California” notes as follows in Chapter 11:
“if (either of the property sections of the petition) say ‘to be determined by written agreement,’ or something similar, this means (the) petitioner can’t get a (divorce) judgment without your written agreement, so you can decide not to respond and focus on working out an agreement, because the case can’t go forward without either an agreement or until an amended petition listing all property is filed and served on you, giving you another chance to respond.”
Ideally you are able to work together (rather than as adversaries) with your spouse on the whole divorce process, including preparation and service of the petition. If so, and you thereby nullify the risk of a default judgment, you may decide not to file a divorce response unless and until things break down. Proceed cautiously because if you do not file a response and your spouse files a request for a default judgment which is granted, it is too late for you file any legal documents in the case.
If you do prepare and file a divorce response, the form you use is almost the same as the divorce petition (form FL-100). You will need to have your response served on the petitioner by a third party and there are forms for this. The entire process is described in the court’s website and in Ed Sherman’s book above. You may also want to get legal advice.