Tips to Correct Errors and Omissions in California Family Court
Family law may be one of the more “user friendly” areas of law in California, but it can still be filled with pitfalls for the unwary. For example, litigants can amend pleadings freely under certain circumstances, and have to request “leave of court” (i.e. file a Request) in others. A litigant may want to amend a divorce or paternity petition for any number of reasons, for example, they incorrectly spelled the name of a child or seek to ask for more than they originally requested.
California Code of Civil Procedure 472(a) – Generally, No Leave of Court Required To Amend
A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading. (operative until Jan. 1, 2021)
Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment. (operative on January 1, 2021)
It is well-settled that parties are generally able to amend pleadings one time without leave of court under the above-circumstances; but if you have already amended your Petition for Dissolution (Divorce) and need to do so again, it is not quite so simple. If you are in this position, what options do you have?
California Code of Civil Procedure 473(a)(1) – Leave of Court Required to Amend
The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.
In California, the family court has discretion to allow the petitioning party to amend their pleadings to correct a mistake. In order to receive this approval from the family court, the party seeking to amend his/her pleadings must first file a Request for Order (Motion) (FL-300) to file a second-amended pleading. Many times, an agreement with the responding party can be reached, and a stipulation drafted and submitted to the court showing that the responding party has no objection to the amendment.
The responding party must also be served with the motion, as this puts him/her on notice of the request. The method of service required depends on the stage of litigation (i.e. whether personal service is required).
The Request should clearly state the mistake to be corrected by the amendment, the status of the case (i.e. whether the responding party has been served with the first amended petition), whether the responding party objects to the amendment, and what (if any) prejudice is likely to result to the responding party if the pleading is amended. The proposed amended pleading must also be attached to the Request.
This article provides only broad pointers for amending pleadings in divorce matters. If you have specific questions for a divorce attorney about the statutory scheme governing divorce pleadings, call the experienced family law attorneys at Talkov Law at (951) 888-3300 or contact us online for a free consultation about your case.