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I filed for divorce in 4/2009 and the divorce went into default as my spouse did not respond.

Burbank, CA |

I filed for divorce in 4/2009 and the divorce went into default as my spouse did not respond. I did submit a judgement package a few months ago and it was rejected and I am in the process of submitting another. I received a petition for divorce from my spouse a week ago 2012 however, my case is still active. I sent a letter to the court he filed in requested dismissal but they said it can't be done by mail. I have to go in to the court which I plan on doing. My questions are do we both have to agree on dismissing his case since I already have a case opened? Do I also respond to his petition filling out the check boxes/completing it as a respondent? Do I file a Form CIV-110? My case was filed in Burbank California and his was filed In Santa Monica, California.

Attorney Answers 2

Posted

Because you filed AND served him with the 2009 Petition for Dissolution, before he filed his petition in 2012 and clearly before you were served with it, the 2009 action has priority. The first court to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter, i.e. dissolution of marriage. Abatement of the action in the court where process was served second in time, is mandatory. Your remedies include a plea in abatement which can be made by a motion to quash service of the summons and petition in 2012. (unless you already filed your response to that petition) It is quite unfortunate that you waited this long to complete entry of judgment in the matter you filed in 2009. You need an attorney to clean this mess up. In the meantime, I suggest you get moving on obtain entry of default in the action you filed in 2009. No, filing a form CIV-110 is not what you should do. You can not file a request for dismissal in an action where you are not the petitioner or plaintiff.

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3 comments

Asker

Posted

I appreciate you answer. It's unfortunate it has taken so long because I am a single parent of 4 on a single income. He has not paid child support and he moves from place to place. I don't even think he is a resident of California but using someones address. I cant afford an attorney and I have been trying to do this divorce on my own. yes it is unfortunate but without money, I'm kind of stuck in Pro Per

Tobie Brina Waxman

Tobie Brina Waxman

Posted

There are resources available to you in Los Angeles County. 1) Harriett Buhai Center for Family Law officers legal advice and assistance with document preparation and filing to income qualified individuals; and 2) the LA Superior Court has a very good self-help center in the downtown court house. I volunteer regularly for the Buhai Center. Give them a call. Good luck.

Asker

Posted

I did get to the self-help center in Pasadena, however, I went to make an appointment. My next visit isn't until July 5th. They did say that I have to file a civ-110 to dismiss his petition but that was obviously the wrong advice. What are the steps to making a plea of abatement? Do I use a form? Do I file with the clerk at the courthouse? i have not filed my response at all but should i do that as well?

Posted

Your situation is a bit unclear. If your case is still pending and if the petition was properly served, it takes precedence over the one filed in another court. However, the procedure for dealing with this situation is too complicated for an answer here on Avvo.

Consult an attorney who can provide you with specific advice in light of your actual circumstances.

Best of luck to you.

Attorney Rebekah Ryan Main – visit us on the web at www.Main-Law.com or call 909-891-0906 to set up a consultation.

If you found this answer helpful, let me know by clicking the "Mark as Helpful" button at the bottom of this answer. It’s easy and appreciated.

This response is intended to be a general statement of law, should not be relied upon as legal advice, does not create an attorney/client relationship and does not create a right to continuing email exchanges.

This response is intended to be a general statement of law, should not be relied upon as legal advice, does not create an attorney/client relationship and does not create a right to continuing email exchanges.

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