2011: Amending a Petition

In San Diego, a petition for dissolution, legal separation, paternity or annulment needs to be filed for the San Diego Superior Court to obtain jurisdiction over the issues: legal status of marriage; legal status of separation; legal judgment for paternity or legal judgment for nullity of marriage. In some legal separation cases, a husband or wife will file a legal separation since they have not lived in San Diego for at least three months and in California for at least six months. In divorce cases, a wife or husband will file an amended petition if they need, for example, to change the date of separation or marriage or made a mistake in the petition. While this is not usual, it is not unknown and it is crucial to have the pleadings absolutely correct.

In San Diego, the Code of Civil Procedure Section 472 permits a Petition for divorce or legal separation {or any petition} to be amended once as a matter of right. This can be done without leave of court as long as the response is not filed simply by filing the amended pleading and serving a copy on the opposing party. If an amended petition is filed, it must be served again and the time to respond starts anew.

Once a Response has been filed, then leave of court is required to amend a Petition. The request to amend may be made at an emergency hearing {ex parte} or by noticed motion. In either event, the San Diego Local Court Rules must be followed.

Under the Code of Civil Procedure Section 473 (a)(1) 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 can be requested of the Court.

If you have any questions regarding amending a petition, please feel free to contact us for a complimentary and confidential consultation.

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