When Serving First Matters

In California divorce cases, the spouse who files the request for the divorce is known as the Petitioner and the spouse responding to the request is, appropriately, the Respondent. Most divorce lawyers will tell you that there is no real benefit to being the Petitioner or the Respondent in most cases (although this divorce lawyer will tell you, all other things being equal, its nicer to be the Petitioner because the Petitioner gets to go first and last at trial).

There are occasions when the difference between being the Petitioner and the Respondent can result in significant consequences. When each party has resided in a different county (which typically happens after separation) for at least three months, under California law, the filing of a dissolution action in either county will be allowed. If one party is residing in San Francisco while the other is residing in San Diego, the location of the case can result in significant expense to one of the parties.

So when the Courts in two different counties can assume jurisdiction of the case, how is it decided which Court will take the case? Generally, the Court who acquires jurisdiction of both parties can take the case and the Court who acquires jurisdiction second must abate the dissolution action. In other words, the party who serves the other party first will be entitled to have the dissolution action proceed in their county of residence. Filing first generally means nothing.

If I see a potential situation like this and I see that the parties have separated and have been residing in different counties, I will typically advise my client to file and serve immediately to keep the case in San Diego County.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. 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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