The person (called a "party" in court) who starts the case is called the petitioner. The person you are filing your case against is called the respondent. A person keeps the title as petitioner or respondent for all future filings in the case.
The petitioner has to tell the court IN WRITING what the case is about,
who the case is against, and what outcome (known as relief) is wanted.
For example, a person seeking a divorce would explain IN WRITING what
the case is about (a dissolution of marriage) and the "relief" wanted,
which may include a divorce along with the division of property,
parenting arrangements (child custody), and child support. The original writing in a case is called the "petition."
The petition must be complete and include certain information required
by law. After the petition is filed either petitioner or respondent may
file motions to request action by the court about a variety of matters.
Step 2. Filing
How is a case filed?
The petition must be verified
before it can be filed, which means
you must swear to or affirm the truth of the facts in the petition.
Then, you must sign the petition under oath before a notary. Most banks
(including those in grocery stores) have notaries that will do this for a
Where is a case filed?
There are laws that determine where a
case may be filed. A family law case is usually filed in the county in
which either the petitioner or respondent resides. In most cases, a
motion to change a prior order regarding parenting arrangements
(custody) must be filed in the same court that issued the prior order.
What if you cannot afford the court costs?
If you cannot afford the court costs, you may ask the court to waive
fees and costs. This sometimes is called In Forma Pauperis
manner of a poor person). The court will determine whether to waive
filing fees and other costs. Click here
to view the application form. The application form also may be
available at the court clerk's office. You will have to provide the
court with detailed financial information.
If a poor person is represented by a Legal Services Corporation agency,
the agency may certify to the court that you are unable to pay costs.
This certificate requires the court not to charge you costs.
Are there any other forms that need to be filed?
There are other forms that must be filed along with the petition so
the court has enough information about you to review the circumstances
of your case before a hearing. The forms required depend on the type of
case being filed. In all cases a 'Confidential Filing Information Sheet'
is required to provide confidential information to the court. When
children are involved, a form must be filed disclosing whether other
cases are filed or pending regarding the children. These forms may be
available for download from this site at the conclusion of this Litigant
Awareness Program. Individual courts may have other versions of these
forms that they utilize. To avoid delay, check with your local court
prior to filing your case to be sure you are filing all required forms
(the judge ultimately will decide whether the paperwork you have filed
meets legal requirements.)
Step 3. Service
How is the other person notified a case has been filed?
When the petition is filed with the court, an official notice called a "summons
" is issued to be delivered to the respondent. This is called service of process
is very important and must be done correctly. Doing it incorrectly will
cause not only delay of your case, but MAY cause your case to be
dismissed. Service is proper when the respondent receives a copy of the
petition and the summons.
The most common methods of “service” are listed below:
- Waiver of Personal Service: When the respondent is willing to
accept the petition, the respondent is provided with a copy of the
petition and signs a form called "Entry of Appearance and Waiver of
Service.” This form must be signed before a notary public and filed with
the court. All this form means is that personal service is waived. The
respondent does not waive any legal rights or claims, the right to hire a
lawyer, or to appear in court.
- Personal Service: The sheriff or other court officer hand
delivers the petition and the summons to the respondent. It is important
to provide the court with very specific information about where, how,
and when to find the respondent.
- Private or Special Process Server: A special or private
process server may be desirable when the respondent is difficult to find
or are trying to avoid being served. This is a situation where a lawyer
should be consulted to help you.
- Service by Publication: THIS METHOD CAN BE USED ONLY WHEN THE
RESPONDENT CANNOT BE LOCATED AFTER DILIGENT EFFORTS. Check with a
lawyer before attempting service by publication because this method of
service can affect and/or restrict some of the things the court could
otherwise order in the case, such as division of property, spousal
maintenance, or child support. This method of service requires that a
motion be made to the court that all attempts to locate or reach the
other party have failed. There are specific requirements for which
newspapers are acceptable for service by publication.