I'm going to be out of the country for two to three months in the summer and my husband has told me he wants a divorce. He hasn't filed yet but is planning too. Can he file while I'm gone without me knowing it? Can the court grant him a divorce without my consent?
What should I do? I leave at the end of May.
The answer my colleague has given is absolutely correct. Many people are confused as to what service is and when the time to answer actually starts so it may be helpful for me to take a moment to explain.
Anytime a lawsuit is filed, whether it be a Petition of Dissolution (divorce) or any other lawsuit, both the United States constitution and the California constitution (as do all other states) require that the person who is being sued or divorced actually receives a copy of the action in order to have adequate notice of what is being filed against them, and to have the opportunity to tell their side to the court. The law requires that the notice include a summons and copies of every one of the documents that have been filed with the court.
With a few exceptions, these documents must be personally given to the person sued in person by an adult, but not by the person who is suing them. In other words, in a divorce, it cannot be the spouse who has filed the petition who gives the copy to the person receiving the copy.
If you are out of the country, it is possible, but unlikely that you will be served until you get back into the country. The time you have to respond (file your response in court) is 30 days in California and that time does not start until you have been served.
Hopefully this additional information was helpful to you.
Real Estate Attorney
He can file while you are gone, but he must personally serve you with a copy of the Petition. He can do this while you are abroad or wait until you get back. The court will not enter a divorce judgment against you without a proof of service showing you have been served.
You can check the divorce filings online while you are gone. See weblink.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.