Responding to a Complaint for Divorce
I’ve been served with divorce papers. What do I do now? Most importantly, don’t panic! You’ve most likely been served with a Summons and a Complaint for Divorce by either a Sheriff’s Officer or, more likely, a private process server. In most instances, you will have 35 days to file your response with the Court. This is usually sufficient time for you to retain your own attorney, who will prepare and file with the Court on your behalf a responsive pleading, such as an Answer to the Complaint or an Answer and Counterclaim for Divorce.
The Summons will warn you that if you don’t file your Answer within the allotted time, judgment by default may be rendered against you. In most instances, this is not something that you want to happen! The Summons will also indicate that you may be eligible for free legal services. Phone numbers will be provided in the Summons for you to call Legal Services, which provides pro bono representation to those who are eligible, as well as the county and state Bar Association lawyer referral services. For those who do not qualify for legal assistance through Legal Services, the county and State Bar associations can refer you to private attorneys who can provide representation but who are entitled to charge for their services.
The Complaint for Divorce you received will set forth the grounds upon which your spouse is seeking a divorce (most likely irreconcilable differences), and will set forth in very broad terms the type of relief being sought from the Court, such as a dissolution of the marriage, equitable distribution, a request for alimony, child custody, and child support. It will not contain a detailed proposal of everything that your spouse may be seeking, such as dollar amounts for alimony or child support.What if I Do Nothing?
In short, this is a very, very bad idea in most instances. Should 35 days pass, and should you fail to file a responsive pleading with the Court, your spouse can file to have Default entered against you. This means that you will lose your right to make independent requests for relief to the Court, and you will be very limited in how actively you can challenge the requests your spouse may be making of the Court.
In addition to filing a Request to Enter Default, your spouse may also file and serve upon you a Notice of Proposed Final Judgment, which will set forth the relief your spouse is seeking from the Court, which may include your spouse’s proposal for how to divide assets and liabilities between the two of you. Your spouse can also set forth requests for alimony, child support, and child custody, which can be entertained and decided by the Court at a default hearing.Did I Wait Too Long to Hire an Attorney?
Hopefully, you have decided to hire an attorney far enough in advance of the 35 day deadline that the attorney has sufficient time to file your response with the Court. However, if you retain an attorney close to the 35 day deadline, your attorney may ask your spouse’s attorney to sign a document known as a Stipulation Extending Time for Responsive Pleading, or a Consent Order Extending Time for Responsive Pleading, which will grant you a specified additional period of time in which to file a response with the Court, typically an additional 10 to 21 days. While your spouse’s attorney is not obligated to consent to such a request, typically, as matter of professional courtesy between the two attorneys, such requests are usually accommodated.
If you have already been served with a Request to Enter Default and a Notice of Proposed Final Judgment, you can still hire an attorney, but you have now made your life (and your attorney’s) more difficult. Your attorney will contact your spouse’s attorney to see if the attorney will agree to sign a Consent Order Vacating Default. This Consent Order will provide that your responsive pleading must be filed with the Court within a certain number of days. If your spouse’s attorney is unwilling to voluntarily vacate the Default, your attorney will most likely be required to file a formal Notice of Motion to Vacate Default with the Court. In your Certification in support the Motion, you will attempt to provide the Court with an explanation as to why Default should be vacated and why you did not respond to the Complaint in a timely manner. If the Court finds good cause, it will vacate default and allow you an additional period of time to file your response.