What to do when the other party files in the wrong county

Sometimes a divorce isn’t filed in the right county and a party might be seriously disadvantaged as a result.right-or-wrong-1160031

What do we mean by “wrong county”? Let’s start with the law. Family Code section 2320 states, in relevant part, as follows (emphasis added):

A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition. “

An example would be helpful here. Let’s say Husband and Wife lived in San Diego county for their entire marriage. All the community property they amassed during the marriage, everything from the marital residence to the clothes on their back, is in San Diego. They separate and let’s say Wife moves all the way to Sacramento County, a considerable 500 miles from San Diego. Wife waits for two and a half months before she files for divorce and serves the divorce upon Husband.

If Husband doesn’t proceed carefully, he may end up litigating a case in a completely foreign county. He will likely have to hire a lawyer without ever having met that lawyer face to face. He won’t have the benefit of asking friends and family in Sacramento for a referral to a divorce attorney because all of his friends and family are in San Diego. Whenever there is a hearing, it will be very expensive, perhaps prohibitively so, for Husband to trek up to Sacramento so he can participate in person. So what should Husband do in this situation?

The first thing Husband should do is file and serve a petition for divorce from San Diego County. The reason for this is because Wife was only a half a month away from meeting the residency requirements in Sacramento County. If she were to get wind of the fact that Husband was challenging her Sacramento County action, she could conceivably dismiss her petition and simply refile it after she was in Sacramento County for the full three months. Husband filing and serving his San Diego County petition as soon as possible will ensure that the San Diego case would be first in time compared to any subsequently filed Sacramento case.

Once Husband files and serves his San Diego petition, he needs to act on Wife’s errantly filed Sacramento petition and he needs to do it fast. Under the law, a party could end up waiving the right to have the matter heard in the right county if they don’t file the correct motion within 30 days of being served with the errantly filed petition.

So what is the motion Husband needs to file? In a civil case, the motion is called a motion to transfer venue. Family law cases have their own special procedure called the “Request for Order to Quash”:

(b) Respondent’s application

Within the time permitted to file a response, the respondent may move to quash the proceeding, in whole or in part, for any of the following reasons:

(1)Lack of legal capacity to sue;

(2)Prior judgment or another action pending between the same parties for the same cause;

(3)Failure to meet the residence requirement of Family Code section 2320; or

(4)Statute of limitations in Family Code section 2211.

Given the facts above, if Husband files his Request for Order to Quash before the applicable deadline, the Sacramento Court should decline to take the case. However, these issues can be tricky and having competent, experienced counsel could make a difference in your case.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding venue and/or jurisdiction. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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