After the plaintiff completes service of process in a divorce action, the defendant will be allowed a certain amount of time to file a response to the divorce complaint. This document is also known as the “answer” in a divorce case. The allotted period to file an answer varies from state to state. A divorce lawyer certified to practice law in your state will be able to assist in determining the allotted time for a defendant's response in a divorce case (1).
Failure to Respond to a Divorce Complaint
If the defendants fails to respond to a divorce summons, then he or she is considered in default. This will relieve the plaintiff from obligation to provide notice to the defendant of future divorce proceedings. Additionally, the plaintiff may request the court issue a judgment in his or her favor without input from the defendant. This is referred to as a hearing on the merits or a default judgment (1).
Although courts commonly grant a default judgment in most civil trials, they usually treat divorce cases differently. Courts are usually conservative in granting default judgments due to the importance of the rights at stake in a divorce case. This is especially true when there are children involved. However, failure to respond to a divorce complaint may block the defendant from contesting matters raised by the complaint. It may also stop the defendant from seeking certain types of relief. Consulting a divorce attorney may be advisable since each jurisdiction has its own rules that can vary widely (1).
Admissions and Denials in a Divorce
In the response, a defendant will may either admit, deny, or not respond to each of the plaintiff's factual allegations in the filed divorce complaint. For example, the defendant may admit that a child named on the complaint is in fact a child of the marriage. On the other hand, the defendant may also deny certain alleged facts, such as the plaintiff's claim to a right to the requested relief. The defendant can also state he or she does not have enough information to either admit or deny specific allegations (1).
Affirmative Defenses in a Divorce
An affirmative defense is when the defendant admits that the plaintiff's allegations are true, but do not entitle the plaintiff to prevail in the action. However, since no-fault divorce laws, affirmative defenses are rarely encountered in divorce cases. No-fault divorce laws have made it almost impossible for one party to prevent another party from obtaining a divorce (1).
Counterclaims in a Divorce
In response to the plaintiff's divorce complaint, the defendant may issue counterclaims in his or her answer. A counterclaim is when the defendant's answer brings forth claims for relief against the plaintiff. For example, the defendant may seek custody of the children in the form of a counterclaim for a divorce. Another common counterclaim in a divorce is seeking spousal support from the plaintiff (1).
Motion to Dismiss in a Divorce
The defendant may respond to the plaintiff's divorce action by filing a motion to dismiss. If the motion is successful the defendant is relieved from obligation to respond to the divorce complaint. Some common arguments in a motion to dismiss a divorce action are lack of jurisdiction, inadequate service, or improper venue. Most courts allow a specific time period for the plaintiff to respond to a motion to dismiss a divorce case (1). For example, the state of Ohio allows 14 days to respond to a motion to dismiss a divorce action (2). However, the plaintiff may also refile the divorce complaint after the court grants a dismissal (1).
Sources:
(1) Family Law for Paralegals by J. Shoshanna Ehrlich, published in 2005.
(2) Ohio Legal Services: Motion to Dismiss: http://www.ohiolegalservices.org/public/legal_problem/courts-hearings/documents-and-papers-from-a-court/motion-to-dismiss/qandact_view
Tuesday, August 16, 2011
Monday, August 15, 2011
Service of Process for a Divorce Complaint
Once the divorce complaint has been filed, it must be served on the defendant. This notifies the defendant that a legal action has been taken against him or her. The plaintiff is legally required to ensure the defendant is properly served a copy of the filed divorce complaint and the divorce summons. This is known as service of process (1).
The Divorce Summons
The legal document by which the court asserts its jurisdiction is generally referred to as “process.” Usually a summons acts as the process document for a divorce case (2). A summons informs the defendant that there has been a legal action taken against him or her. In a divorce case, the court issues the summons to the plaintiff after filing the divorce complaint. The plaintiff must then complete the summons and serve it upon the defendant along with a copy of the divorce complaint. One may wish to consult a divorce attorney to assist in completing the divorce summons (1).
Service of Process Methods for a Divorce
Each jurisdiction has its own rules regarding the proper method for service of process in a divorce. The most common method is by personal service. This means that the plaintiff serves the defendant by personally delivering the divorce papers. The plaintiff's attorney may also serve the divorce complaint and summons on the plaintiff's behalf. Some jurisdictions allow service by leaving the divorce documents at the defendant's place of residence. Most states require the documents be left with a competent adult. Usually, the service must be made by an adult who is not a party to the divorce action. Some states allow service via certified mail. For an out-of-state defendant, most states allow service to be made by a nonresident by the same methods normally available in the defendant's home state. However, due to the wide variety of rules of each state, it is advisable to consult a divorce attorney to ensure the proper method for service of process (1).
Proof of Service in a Divorce Case
After serving the defendant, the plaintiff must certify when, where, and how service of the divorce documents was performed. This is referred to as proof of service. This documentation serves as evidence that the defendant had indeed been served the divorce complaint and summons. The proof of service may be located on the back of the court-issued summons or it may be drafted as a separate document (1).
If you are the plaintiff, you may be able to perform service of process on your own. However, you should contact your local family or divorce court division to ensure you are following the proper procedure. You may also consider consulting a divorce lawyer for assistance. Once service of process has been completed the next step in the divorce process is the defendant's response.
Sources:
(1) Family Law for Paralegals by J. Shoshanna Ehrlich, published in 2005.
(2) The Free Dictionary: Service of Process: http://legal-dictionary.thefreedictionary.com/Service+of+Process
The Divorce Summons
The legal document by which the court asserts its jurisdiction is generally referred to as “process.” Usually a summons acts as the process document for a divorce case (2). A summons informs the defendant that there has been a legal action taken against him or her. In a divorce case, the court issues the summons to the plaintiff after filing the divorce complaint. The plaintiff must then complete the summons and serve it upon the defendant along with a copy of the divorce complaint. One may wish to consult a divorce attorney to assist in completing the divorce summons (1).
Service of Process Methods for a Divorce
Each jurisdiction has its own rules regarding the proper method for service of process in a divorce. The most common method is by personal service. This means that the plaintiff serves the defendant by personally delivering the divorce papers. The plaintiff's attorney may also serve the divorce complaint and summons on the plaintiff's behalf. Some jurisdictions allow service by leaving the divorce documents at the defendant's place of residence. Most states require the documents be left with a competent adult. Usually, the service must be made by an adult who is not a party to the divorce action. Some states allow service via certified mail. For an out-of-state defendant, most states allow service to be made by a nonresident by the same methods normally available in the defendant's home state. However, due to the wide variety of rules of each state, it is advisable to consult a divorce attorney to ensure the proper method for service of process (1).
Proof of Service in a Divorce Case
After serving the defendant, the plaintiff must certify when, where, and how service of the divorce documents was performed. This is referred to as proof of service. This documentation serves as evidence that the defendant had indeed been served the divorce complaint and summons. The proof of service may be located on the back of the court-issued summons or it may be drafted as a separate document (1).
If you are the plaintiff, you may be able to perform service of process on your own. However, you should contact your local family or divorce court division to ensure you are following the proper procedure. You may also consider consulting a divorce lawyer for assistance. Once service of process has been completed the next step in the divorce process is the defendant's response.
Sources:
(1) Family Law for Paralegals by J. Shoshanna Ehrlich, published in 2005.
(2) The Free Dictionary: Service of Process: http://legal-dictionary.thefreedictionary.com/Service+of+Process
Filing a Divorce Complaint
After drafting the divorce complaint, it must be filed at the appropriate court division. Many jurisdictions have a special division that handles family law cases, such as a divorce action. A divorce complaint form may be ordered online or obtained at the courthouse. The plaintiff must ensure that all necessary accompanying documents are included, such as a marriage certificate. The court clerk will then review the divorce complaint to ensure it has been filled out adequately. Filing for a divorce can usually be done either in person or by mail (1).
Docket Number for Divorce Case
Once the court clerk has accepted the divorce complaint, he or she will assign the divorce case a docket number. It is important to record this docket number for future reference. The docket number will be used on all later divorce case documents. You may also need your docket number in the future if you need to contact the court for additional questions regarding your divorce case (1).
Venue for Divorce Case
When filing a divorce complaint, you must ensure you are filing with the correct court division. The proper venue for filing will be a court which has subject matter jurisdiction over divorce actions. Venue rules will vary from state to state, therefore it may be beneficial to consult a divorce lawyer to determine which court division is the correct venue. Usually, a divorce action should be filed where either the plaintiff or defendant lives or where the cause of action arose. Various other factors, such as where the children reside or where the spouses last lived together can play a role in determining the proper divorce venue (1).
Filing Fees and Fee Waivers for a Divorce Complaint
The court will charge a filing fee for a divorce action in most states. These filing fees help cover court administrative costs related to processing your divorce. However, states are required to allow low-income divorce plaintiffs to apply for a waiver of the filing fee. This ensures everybody has access to divorce courts. Some qualified plaintiffs may be eligible for the state to pay for costs related to service of process and even costs related to discovery. You may need to consult a divorce lawyer in order to determine if you qualify for fee and costs waivers related to your divorce case (1).
Filing for a divorce can be complicated in some cases. Many times it is unclear which is the proper venue to file the divorce complaint. Additionally, each state has its own rules regarding which accompanying documents are required. After the divorce complaint has been filed, it is the plaintiff's responsibility to ensure that the a copy of the divorce complaint is served properly to the other spouse (2). It may be in your best interest to hire a divorce attorney in order to file your divorce case correctly.
Sources:
(1) Family Law for Paralegals by J. Shoshanna Ehrlich, published in 2005.
(2) FindLaw: Filing and Serving the Divorce/Dissolution Petition: http://family.findlaw.com/divorce/divorce-process/divorce-filing.html
Docket Number for Divorce Case
Once the court clerk has accepted the divorce complaint, he or she will assign the divorce case a docket number. It is important to record this docket number for future reference. The docket number will be used on all later divorce case documents. You may also need your docket number in the future if you need to contact the court for additional questions regarding your divorce case (1).
Venue for Divorce Case
When filing a divorce complaint, you must ensure you are filing with the correct court division. The proper venue for filing will be a court which has subject matter jurisdiction over divorce actions. Venue rules will vary from state to state, therefore it may be beneficial to consult a divorce lawyer to determine which court division is the correct venue. Usually, a divorce action should be filed where either the plaintiff or defendant lives or where the cause of action arose. Various other factors, such as where the children reside or where the spouses last lived together can play a role in determining the proper divorce venue (1).
Filing Fees and Fee Waivers for a Divorce Complaint
The court will charge a filing fee for a divorce action in most states. These filing fees help cover court administrative costs related to processing your divorce. However, states are required to allow low-income divorce plaintiffs to apply for a waiver of the filing fee. This ensures everybody has access to divorce courts. Some qualified plaintiffs may be eligible for the state to pay for costs related to service of process and even costs related to discovery. You may need to consult a divorce lawyer in order to determine if you qualify for fee and costs waivers related to your divorce case (1).
Filing for a divorce can be complicated in some cases. Many times it is unclear which is the proper venue to file the divorce complaint. Additionally, each state has its own rules regarding which accompanying documents are required. After the divorce complaint has been filed, it is the plaintiff's responsibility to ensure that the a copy of the divorce complaint is served properly to the other spouse (2). It may be in your best interest to hire a divorce attorney in order to file your divorce case correctly.
Sources:
(1) Family Law for Paralegals by J. Shoshanna Ehrlich, published in 2005.
(2) FindLaw: Filing and Serving the Divorce/Dissolution Petition: http://family.findlaw.com/divorce/divorce-process/divorce-filing.html
The Divorce Complaint
The first step in a divorce is filing a divorce complaint. The divorce complaint may be filed by the plaintiff or his or her divorce lawyer. This gives the court legal authority over the parties. The divorce complaint officially states the plaintiff's case to the court and the defendant. Most states offer pre-printed forms, which can be used as the divorce complaint. These pre-printed divorce complaint forms may be ordered online or obtained in person at the local court house (1).
Contents of the Divorce Complaint
The divorce complaint serves various essential functions. Firstly, the divorce complaint identifies the parties which are involved in the divorce action. The complaint lists important information about the parties, such as addresses and length of time living in the state in which the divorce action is being filed. The court uses this information to determine if it is the proper venue to hear the divorce case (1). Most states have a minimum residency requirement in order to file for a divorce. For example, California requires at least one of the spouses to have lived in the state for the last six months (2).
The divorce complaint will also set out the important facts underlying the divorce action. Some of these facts include date and location of marriage. The divorce complaint must also include the names and birthdays of any children of the marriage. Location of where the parties last lived together and the date and cause of marital separation will also be stated in the divorce complaint (1).
The amount of detail required on a divorce complaint may vary with each state. The complaint must establish a basis for a divorce, however each state has its own laws governing what constitutes sufficient basis. It may be necessary to consult a divorce lawyer in order to help determine the requirements in a specific jurisdiction (1).
Lastly, the divorce complaint must include a request for relief. This states exactly what the plaintiff is asking from the court. This includes a request to dissolve the marriage through divorce, as well as, requests involving child custody, spousal support, and division of property (1).
Amending a Divorce Complaint
Many times after filing a divorce complaint, the plaintiff may wish to change the content of the document. For example, this may include a plaintiff who had initially asked for full custody of a child, but then subsequently agreed to a split custody agreement. Most states allow the plaintiff to amend the divorce complaint within a specified time period. However, after this time period, the plaintiff must usually obtain the permission of the court or the defendant to amend the divorce complaint (1).
Joint Petitions for Divorce
Some states allow spouses to file a joint no-fault petition for divorce. In a joint petition for divorce, neither parties are considered the plaintiff or the defendant. Instead, both parties are recognized as co-petitioners. Many states have special procedures for those filing a joint petition for divorce. Consulting the advice of a competent divorce lawyer may help with navigating through a specific state's procedures for a joint petition for divorce (1).
Many times a divorce can be straight-forward, especially in an uncontested divorce. In this case, a person may be able to file a divorce complaint without any help. Many of the necessary forms can be ordered online or obtained at the local court house. However, in more complicated divorce cases, such as those involving children, finding a divorce lawyer may be the best option.
Sources:
(1) Family Law for Paralegals by J. Shoshanna Ehrlich, published in 2005.
(2) California Courts: Self-Help Center: http://www.courtinfo.ca.gov/selfhelp/family/divorce/residency.htm
Contents of the Divorce Complaint
The divorce complaint serves various essential functions. Firstly, the divorce complaint identifies the parties which are involved in the divorce action. The complaint lists important information about the parties, such as addresses and length of time living in the state in which the divorce action is being filed. The court uses this information to determine if it is the proper venue to hear the divorce case (1). Most states have a minimum residency requirement in order to file for a divorce. For example, California requires at least one of the spouses to have lived in the state for the last six months (2).
The divorce complaint will also set out the important facts underlying the divorce action. Some of these facts include date and location of marriage. The divorce complaint must also include the names and birthdays of any children of the marriage. Location of where the parties last lived together and the date and cause of marital separation will also be stated in the divorce complaint (1).
The amount of detail required on a divorce complaint may vary with each state. The complaint must establish a basis for a divorce, however each state has its own laws governing what constitutes sufficient basis. It may be necessary to consult a divorce lawyer in order to help determine the requirements in a specific jurisdiction (1).
Lastly, the divorce complaint must include a request for relief. This states exactly what the plaintiff is asking from the court. This includes a request to dissolve the marriage through divorce, as well as, requests involving child custody, spousal support, and division of property (1).
Amending a Divorce Complaint
Many times after filing a divorce complaint, the plaintiff may wish to change the content of the document. For example, this may include a plaintiff who had initially asked for full custody of a child, but then subsequently agreed to a split custody agreement. Most states allow the plaintiff to amend the divorce complaint within a specified time period. However, after this time period, the plaintiff must usually obtain the permission of the court or the defendant to amend the divorce complaint (1).
Joint Petitions for Divorce
Some states allow spouses to file a joint no-fault petition for divorce. In a joint petition for divorce, neither parties are considered the plaintiff or the defendant. Instead, both parties are recognized as co-petitioners. Many states have special procedures for those filing a joint petition for divorce. Consulting the advice of a competent divorce lawyer may help with navigating through a specific state's procedures for a joint petition for divorce (1).
Many times a divorce can be straight-forward, especially in an uncontested divorce. In this case, a person may be able to file a divorce complaint without any help. Many of the necessary forms can be ordered online or obtained at the local court house. However, in more complicated divorce cases, such as those involving children, finding a divorce lawyer may be the best option.
Sources:
(1) Family Law for Paralegals by J. Shoshanna Ehrlich, published in 2005.
(2) California Courts: Self-Help Center: http://www.courtinfo.ca.gov/selfhelp/family/divorce/residency.htm
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