The Defendant's Response in a Divorce

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