Filing in wrong county

My husbands lawyer filed for LEGAL SEPARATION in sacramento county On February 14, 2020. He has not lived in this county for the required 3 months. I have not been served yet -and the proof of service has not been filed. So I filed for DIVORCE in the correct county yesterday and had him served last night and had the proof of service filed. Is there a chance that the petition that I filed will not granted because he filed first? Or will mine be granted because technically I have not been served yet?

Legal separation and divorce are two entirely different types of cases. There are no county residency requirements for a legal separation, which means that your husband’s lawyer was able to file in Sacramento County. That said, if you filed for divorce in a county where you’ve been a resident for at least 3 months (and of California for at least 6 months) and served your spouse, there is no other choice but to dismiss the legal separation case. In short, a divorce “trumps” a legal separation.

If the two of you had competing petitions for divorce in different counties, it is the first to SERVE, not the first to file, whose case would prevail.

Thank you so much!! Do I have to file to get the separation dismissed ?

I would personally just email courtesy copies of the pleadings you filed to his attorney, including the proof of service, and then request a copy of the legal separation dismissal upon its filing. That’s a polite hint to the attorney that they need to dismiss the case. :slight_smile: