Rita and her husband had been separated for around six months before they finally agreed that they were not getting back together. They even agreed that they should divorce, making it as easy on one another as they could manage. But neither Rita nor her husband had any specific idea of how to proceed with the divorce. Did they need to do something together? Or did one of them have to get the divorce started and the other one to respond?

Parties

Spouses start a divorce proceeding with one of them filing the divorce case in their state civil courts. Divorce proceedings assume a degree of opposition. That is, the civil courts hearing divorce cases require one spouse to be on one side and the other spouse to be on the other side. There is no filing together. One spouse files as the plaintiff, naming the other spouse as the defendant. The case name then puts the little signifier versus between the two spouses, as in Plaintiff Jane Doe v. Defendant John Doe, making clear enough the naturally adversarial nature of divorce cases. When spouses agree to divorce, they must in the usual case decide which one will be the filing party, or plaintiff, and which one will be the responding party, or defendant. If both want to be the plaintiff suing for divorce, they may find themselves in a race to the courthouse. It happens. Only one gets to file for divorce, although the other may counterclaim for divorce in the same case.

Alignment

The alignment of the parties, plaintiff and defendant, can make some difference. The plaintiff may get to choose the county in which to file. The plaintiff gets to be the first one to allege what happened and what needs to happen. If the divorce case goes to trial, which only a small percentage of cases generally do, the plaintiff is generally the first one to present the evidence to the trial judge. If the judge permits oral opening statements, the plaintiff is the first one to do so. If the judge permits oral closing argument, the plaintiff is again the first one to do so and traditionally is also the last to argue in any rebuttal. Sometimes, the first to go in anything has an advantage. Which spouse is the one suing for divorce can also affect social attitudes and interpretations. A spouse opposing divorce would presumably prefer not to be the one suing for divorce. Yet a spouse seeking divorce because of abuse or adultery might want to be the one suing for divorce. You be the judge in your case. Just be aware of alignment issues.

Complaint

The spouse suing in civil court for divorce initiates the lawsuit by filing a complaint. The complaint names the spouses, the fact and date of their marriage, and the names and birthdates of any minor children of the marriage, typically also including a recital that the wife is not pregnant with another anticipated child of the marriage. The complaint also alleges any other prerequisites that the state’s divorce law may require, such as residence in the state for a certain number of days and residence in the county of filing. The complaint then alleges that the marriage is irretrievably broken in a manner that the parties cannot repair. In so stating, the complaint may include allegations of fault like those discussed in a prior chapter. 

Relief

The complaint ends with a prayer for relief, beginning with a request that the court enter a judgment of divorce. A prayer for relief may also include a general request for equitable interim relief pending the final divorce judgment. Who knows what help you might need from the court? Prayers for relief also commonly include a request that the court make an equitable division and award of the marital property. A prayer for relief may also request spousal support (alimony). If minor children are involved, the prayer for relief will include a request for an order for child custody, child support, and parenting time. If the other spouse endangers the filing spouse or threatens minor children in the filing spouse’s custody, the prayer for relief may request a restraining order. If the other spouse presents a risk of secreting (diverting and concealing) marital assets, the prayer for relief may request a restraint on assets. 

Form

Complaints must generally be in a specific form, with a caption, case number, case year and code, judge’s name or blank for the assigned judge, attorney names and addresses, a title, subheadings, numbered paragraphs, and a signature block. Some states require or encourage divorcing spouses to verify the complaint, meaning to sign it personally attesting that its allegations are accurate. Whether you prepare your own divorce complaint on a supplied form or retain an attorney to prepare a divorce complaint for you, be sure that every allegation is accurate before you sign it. Signing a false complaint can lead to court sanctions including monetary penalties and procedural disadvantages.

Information

State law or procedures may require that the plaintiff filing the complaint include further information, either in the complaint or in an associated filings, disclosing home addresses, Social Security numbers, number of prior marriages, and similar details, for state data tracking. If minor children are involved, then a Friend of the Court or similar agency may require detailed information on the spouses’ employers, work addresses, income, health insurance, and other information on which to investigate and enforce support obligations. See, for example, the questionnaires and information forms among the other forms at the back of this guide. Be prepared to supply accurate information.

Court

States generally organize their trial-level courts into civil and criminal divisions. Divorce cases are civil, not criminal cases. Divorce cases are between private parties, without a prosecutor or other public official pursuing or defending the case. Some states further divide their civil courts into subdivisions for things like business litigation, probate litigation involving guardianships and the estates of deceased individuals, and a family division for separation, divorce, and paternity cases. Your case may be in a family court before a judge who hears primarily or even solely divorce and other family law cases. Larger courts with several judges in each division generally assign judges randomly to cases. Judges can differ in small ways in their procedural preferences and can at times appear to lean a little one way or the other on some issues, such as how to shape a restraining order, although the outcomes still depend on each individual case. And you won’t get to pick your judge. Knowing your judge’s leanings and preferences, though, can help save time, trouble, and cost, another advantage of retaining an experienced local family law attorney.

Venue

In some civil cases, the plaintiff filing the case has a choice of which county in which to file the case. The law calls it a venue question, the proper court’s location, whether in this county or that county. Venue for divorce cases is generally in the county in which the spouses and their minor children (if any) reside. But you can see that if the spouses have separated and reside for a time in different counties, without minor children or with their minor children sharing residences in both counties, each spouse may have a choice of those two counties in which to file the complaint for divorce. Private parties often hope to litigate in their home county, in part for convenience avoiding travel and in part to be on their home court, so to speak, for any small advantage a home court may gain them. Thus, if you and your spouse reside in different counties, and you’d prefer to avoid traveling to the other county for court, you may want to consider filing first so that you can choose your home court. Judges can transfer a case to the more convenient venue (county) in some instances, if a party files the case in a proper but inconvenient county.

Service

Once a spouse files a complaint for divorce, the court generally issues a summons, like the example summons among the forms at the back of this guide. A summons is a court paper that notifies the other spouse, the defendant, of the filing of the case for divorce and instructs the defendant spouse on how, when, and where to file an answer to the complaint. Court rules then require service of the summons and complaint on the defendant spouse in a specific manner designed to ensure that the defendant spouse actually receives it. Service may require that a process server hand the defendant spouse the summons and complaint or that the defendant spouse sign a certified mail return receipt, acknowledging service. If the defendant spouse dodges service to delay and complicate the divorce proceeding, or out of fear, confusion, or embarrassment, the court may permit service by posting the summons and complaint at the defendant spouse’s residence or last known address, or another means calculated to reach the defendant spouse. Dodging service is generally not a good idea. It could cause you to miss receiving the summons and complaint when served by alternate means.

Default

Proper service of the summons and complaint is key when the defendant spouse fails or refuses to participate in the divorce proceeding. Once the plaintiff (filing) spouse completes proper service of the summons and complaint, the plaintiff spouse will file proof with the court of that proper service. Then, if the defendant spouse does not timely answer the complaint within the relatively brief period the court rules provide, such as 21, 28, or 30 days after service, the plaintiff spouse may default the defendant spouse, typically by filing a notice of default with the court and serving the notice on the defendant spouse. A default may establish key claims that the complaint makes, preventing the defaulted defendant spouse from contesting those claims. Do not default in your divorce case. Your default could complicate your advocacy for the rights and outcomes you deserve.

Answer

To avoid default, the defendant spouse must generally answer the complaint within the period the court rules provide. It is common in divorce cases, though, for the parties and their attorneys to agree to relax some procedural rules, especially the rules for answering and defaults on failure to answer. Sometimes, the plaintiff spouse and that spouse’s attorney will agree that the defendant spouse need not answer, knowing that the parties will instead work diligently and cordially toward a consent judgment. But by the usual procedural rules, the defendant spouse should answer each of the complaint’s numbered allegations with an admission or denial, in a written document titled an answer, timely filed with the court clerk. The answer may also allege defenses such as that the plaintiff spouse has filed in the wrong court, one either lacking jurisdiction (power over the defendant or the subject matter) or venue. 

Counterclaim

When answering the complaint, the defendant spouse also has the option of pleading a counterclaim. A typical counterclaim in a divorce case is to counterclaim for divorce. You might not immediately see the sense in doing so. After all, divorce is what the plaintiff spouse has already requested. Yet some defendant spouses and their attorneys routinely counterclaim for divorce to assert that the defendant spouse, too, has grounds for divorce. Counterclaiming for divorce can also help if the plaintiff spouse attempts to withdraw and dismiss the divorce complaint, when the defendant spouse wants to proceed with the divorce. The judge would generally not dismiss the divorce case on the plaintiff’s request if the defendant spouse had a pending counterclaim for divorce. Either party has the right to seek a divorce.

Torts

Divorcing spouses may have other claims between them that they could maintain in civil court, whether or not within the same divorce proceeding. A spouse may, for instance, have tort (personal injury) claims arising out of domestic abuse, knowing transmission of a sexual disease from intimacy outside of marriage, and even a motor vehicle accident for careless driving, injuring the other spouse as the vehicle’s passenger. State statutes and court rules may or may not authorize the spouse having such claims to file them in the same court and same divorce case. The laws and rules vary from state to state. The divorce court will have broad authority to resolve marital rights and interests, including property divisions, spousal support, and child custody, support, and parenting time issues. If the divorce court does not also have jurisdiction over tort and other claims, the spouse holding those claims may need to initiate them in another court, in another case, or at another time.

Key Points

• A divorce case begins in civil family court between the spouses.

• The court is typically in the county where the spouses reside.

• One spouse files as plaintiff, naming the other spouse as defendant.

• The filing spouse’s complaint alleges the marriage’s breakdown.

• The complaint includes a prayer for all forms of requested relief.

• Service of the complaint on the other spouse requires an answer.

• Default may result if the other spouse does not timely answer.

• The answer admits or denies the complaint’s allegations.

• The answering spouse may counterclaim for divorce.

• Tort or other non-marital claims may need to be in another court.

Read Chapter 8.