What is a Joinder
In a civil case, Joinder involves the process in which a defendant adds unnamed third-party to a lawsuit. A plaintiff cannot hold a person liable unless they are a party in the case. In order to hold a person responsible to the plaintiff by court order, he/she must be listed as a defendant on the complaint in which the judge issues an order. Usually, plaintiffs establish joinder when they wish to pursue legal action against a new party. This new party is a third-party defendant.
On the other hand, you can also file a Joinder in divorce and family law cases. For example, often it is necessary to formally join a retirement plan to the divorce case to protect the account. On the other hand, some retirement plans require formal joining before the plan will acknowledge a QDRO.
As another illustration, matters involving grandparent rights usually require filing a Joinder. Since the grandparents are not part of a family law or paternity case, it is necessary to join them to a case if they are seeking grandparent visitation.
Rules of the Joinder Process
Federal Civil Procedure Rules 18 through 21 establish the joinder process. Rule 19 – 20 details the procedures the plaintiff must take to join a defendant to a lawsuit. Rule 21 addresses the improper joinder of parties and the failure of the plaintiff to join parties who should be part of the lawsuit.
California Civil Procedure and California Rules of Court also address how to add parties to a civil matter. You may hear different terms in relationship to the term joinder. For example, joinder may be necessary or permissive:
- Necessary joinder means, literally, that the action was required. For example, a judge cannot hear a lawsuit or make a court order until the joining of all proper parties because the plaintiff did not include all defendants or claims.
- Permissive joinder means although it is not necessary to add the parties, the court will permit the plaintiff to add them. If the joinder is permissive, then the court may decide to hear the additional claims later. In this situation , the lawsuit can continue in its original form.
How to File a Joinder
Once you have answered the question, “What is a joinder?” you must decide what type of joinder to file. The type of joinder you file will determine the process you follow.
In a civil case, you will first need to file a Motion for Joinder. You will make a formal request to the court to add a person or entity to the lawsuit.
In divorce, you can file a Joinder to request the addition of a pension plan administrator to a Qualified Domestic Relations Order.
If either situation applies to you, keep in mind that the court may order that a person who claims an interest in the proceeding be joined as a party to the case according to the rules adopted by the Judicial Council in Section 211. Secondly, an employee benefit plan may be joined as a party only per Chapter 6 (commencing with Section 2060 ). See California Family Law Code.
If possible, file the Joinder at the same time as the divorce petition or soon afterwards. If the retirement account holder liquidates the retirement funds after a final judgment of divorce, the payee may not receive his/her entitlement.
Who Can Ask to Join a Party?
To understand the joinder process, you must know the people who may have a financial or other interest in the divorce case. Remember, you can join any person claiming or controlling interest in the divorce as a party to the case.
There are three types of people who may seek joinder:
- The petitioner or the respondent may apply to the court for an order joining a person as a party to the case who has or claims custody or physical control of any of the minor children or who has in his or her possession or control or claims to own any property subject to the jurisdiction of the court in the proceeding.
- A person who has or claims custody or physical control of any of the minor children may apply to the court for an order joining himself or herself as a party to the proceeding.
- A person served with an order temporarily restraining the use of property that is in his or her possession or control or that he or she claims to own, or affecting the custody of minor children may apply to the court for an order joining himself or herself as a party to the proceeding.
There are specific forms that you must complete, file with the court, and serve on the opposing party and the party you are joining to the lawsuit. Contact A People’s Choice for more information on how to complete the necessary forms you need to join a party to a pending lawsuit. Call us today at 805-648-5540.
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