Step 2
Initial Filing With The Court
 
 
 Index:
Overview
Choosing The Proper Court
Prepare Documents For First Filing
File With The Court Clerk
 Forms For Step 2
1  Summons
2
 Petition
3  Confidential Counseling Statement
4  Declaration Under UCCJA
5 State Information Sheet On Waiver Of Court Fees And Costs
6 Application for Waiver of Court Fees and Costs
7 Order on Application for Waiver of Court Fees and Costs
8 Notice of Waiver of Court Fees and Costs
 
1. Overview: The first step in the court procedure to obtain your divorce judgment is to file some initial documents (described below) with the court clerk and to obtain one or more "conformed" copies for service on your spouse. To do this you must:
 a. Choose the proper court
 b.
Prepare all documents required by your local court for the initial filing.
 c.
Pay the initial filing fee or obtain a waiver of the filing fee
 d. Obtain one or more "conformed" copies.
 
2. Choosing The Proper Court: To choose the proper California Court in which to file your case, you must satisfy jurisdiction and venue requirements.
a.

California Jurisdiction: California Jurisdiction: In order for California to have Jurisdiction over your case you must have been a resident of the State for the six (6) months prior to the filing of your case. "Residence" for this purpose means "domicile" and requires both physical presence (residence) within the state and the intent to remain there indefinitely. The maintenance of a "residence" within the state is not the equivalent of establishing a "domicile" there.

Caveat: Residence/Domicile of one of the parties gives the court the power to dissolve the marriage union and to change the marital status of the parties from "married" to "single". This is called "In Rem" jurisdiction. However, the court's authority to render binding judgments and orders imposing personal obligations on the parties or affecting their personal rights (i.e., support, attorney fees and costs, property interests) requires that the parties be subject to the forum state's personal ("in personam") jurisdiction in conformity with constitutional due process. "In Personam" jurisdiction over your spouse requires:

  • Physical presence in the forum state when personally served with process; or
  • Domicile in the forum state at the time suit is commenced; or
  • Consent to the exercise of personal jurisdiction; or
  • "Minimum contacts" with the forum state (but unless "substantial, continuous and systematic," minimum contacts confer personal jurisdiction only in suits arising out of those contacts.

If you want to both dissolve your marital status and need orders imposing personal obligations on your spouse, you will need both "In Rem" and "In Personam" jurisdiction.
 b.
County Jurisdiction: Either you or your spouse must have been a resident in the County where you are filing for the three (3) months prior to the date of filing. A spouse satisfies the minimum county residence requirement only if he or she has been "actually residing" (physically present) in the county where the dissolution action is commenced for at least three months.
 c.
Local Jurisdiction: Many Counties in California have several "branch" courts. You must consult local court rules to determine which branch court is the proper court for your case. Example: The Los Angeles Superior Court has a filing district locator which aids in determining the proper court for filing under LA County's local rules .
Note: The California Judicial Branch web site provides an listing of State courts.
 
3. Prepare Documents For The First Filing: Local courts often have special forms not included here. Give your local court clerk a call and see if you will be required to file any such documents before you start to put together your package of documents for the initial filing.
 a. Prepare The Documents: You may choose to file only the basic documents required by the court or, to save time, you may choose to file both the basic documents and the "Disclosure" documents required in Step 5. Additional documents will have to be prepared if you are going to file for a waiver of filing and service fees.
 1)
Basic Documents:
 a) Summons (Judicial Counsel form # 1283; form #1 on our document list)
 b)
Petition (Judicial Counsel form # 1281; form #2 on our document list)
 c)
Confidential Counseling Statement (Judicial Counsel form # 1284; form #3 on our document list)
 d)  Declaration Under UCCJA only if you have children (Judicial Counsel form MC150; form #4 on our document list)
 e)

Local Court Forms: - If they are required, get them from your local court clerk. The California Judicial Branch web site provides an listing of State courts where you may be able to find them online. Here is a listing of a few local court forms pages:

 2)
Optional - Disclosure Documents (See Step 5)
3)
Optional - Filing Fee Waiver Documents: If you cannot afford to pay the costs of filing and service of your documents, you may qualify for a waiver of the fees.
 
The requirements for waiver of filing fees are set out in the State Information Sheet On Waiver Of Court Fees And Costs (#5 on the document list).
 
If you qualify and you choose to apply for the fee waiver, you will need to prepare:
Note: See instructions for filing fee waiver documents below.
 b.
Prepare Copies: When you go to court to file your papers, you will need the originals and a minimum of 2 copies.:

* The original to file with the court.
* One copy to conform (stamp) for your file
* One copy to conform and serve on your spouse
 
Note: We strongly suggest that you have 3 copies conformed in case the service copy is lost.
 
Note: Many local rules require that you two-hole punch at the top all documents to be filed with the court.
 
 
4. File With The Court Clerk: After you initial papers have been prepared, signed, and copied, it will be time to go to the courthouse and file them with the court clerk.
 a. What To Bring With You: Prepare a package to take with you including:
 1)
Original and 2 (preferably 3) copies of your basic documents - Summons, Petition, declaration of UCCJA if there are children involved, and any local court documents required by your local court rules.
 2)
Blank check for the filing fee. Keep it blank - the amount is always changing and you may find when you get to the clerk's office that it is higher (never lower) than you thought (more about this below).
3)
Optional - original and copies of "Disclosure" documents

4)
Optional - original and copies of fee waiver documents if you qualify and plan to seek the waiver
 b.
Be Prepared For Rejection: Beware - court clerks range from happy/knowledgagle/helpful to incredibly sour/incompetent/obstructionist. Thank your lucky stars if you are blessed with the former. If you happen to be dealt the latter, be prepared to leave the window with your tail between your legs carrying a list of local procedures you have unwittingly failed to follow and, perhaps another list of local court forms you have to go home to prepare..
 c.
If Your Papers Are In Order: When everything is in order, this is what will happen:
 a) Filing Fee: The clerk will ask you for your filing fee. The fee is approximately $200 and is always changing.
 b)
Original Summons: The court will issue you an original summons. PUT THIS IN YOUR FILE AND DO NOT SERVE IT!! You will need to return it to the court later when you file your "default package".
 c)
Originals Filed: The clerk will file the original documents in the court file.
 d) Case Number: The court will stamp the originals with a case number.
 e)
Conformed Copies: Ask the court to "conform" (stamp) all of your copies with the case number and "date filed" stamp. Some clerks will do this - others will conform only one and will hand you the stamps to do the remaining copies yourself.
 d. Yes!!: You've done it!! You've taken the first and most difficult step. It is all downhill from here. Pat yourself on the back and treat yourself to a Starbuck's. You deserve it.