First Legal Steps

  • Introduction
  • Custody
  • Child support
  • First legal steps
  • Temporary motions
  • Discovery and depositions
  • Settlement
  • Motions and orders
  • Pre-trial conference
  • The trial
  • Modification
  • Guardian ad litem
  • Using Experts
  • Private investigators
  • Parting words
  • About the author
  • The First Legal Steps


    The Petition, Answer and Cross-Petition

    To obtain a divorce, either the husband or the wife must petition a court for a judgment of divorce (in some states, dissolution). To begin the court procedure, the first step is for the husband or wife to formally request a divorce from the court by filing a Petition for Dissolution. In the majority of states, the person filing such petition is called the Petitioner. These documents are almost always drawn up by attorneys.

    Once the petition has been filed, the other spouse is officially notified by written legal documentation of the Petitioner’s intention to divorce. The petition is “served upon” (delivered to) the Respondent by a sheriff or process server. The person receiving the petition is the Respondent. In some states, the parties are simply called Plaintiff and Defendant. The State legislatures that label the parties to a divorce proceeding “Petitioner” and “Respondent” probably do so to distinguish between divorce litigation and other types of lawsuits.

    The petition is typically a short, simple document stating the basic facts (i.e. date of marriage, separation date, addresses of the parties, names and dates of birth of children, etc.), and a request for relief sought (e.g. divorce, child support, maintenance (a.k.a alimony) and property division). The Respondent typically has 30 days from the date of service to file an answer. The answer is usually also brief; the Respondent admits or denies each assertion in the Petition and asks the court to deny the Petitioner’s request.

    Such exaggerated allegations are especially common in “fault” states, which require the existence of “misconduct” (such as adultery, physical abuse or extreme and repeated mental cruelty) as a condition for granting a divorce. Naturally, a good husband and dad may be incensed at these allegations. Again, I tell him that his wife inserted the sentence solely because the law requires her to make these allegations in order to obtain a divorce. It is likely that neither she nor the court will give unsubstantiated allegations any further attention.

    With the Answer, the Respondent often files a Cross-petition. This document is similar in form to the original Petition, and sets forth the Respondent’s position about the basic facts and the relief Respondent seeks. Whether or not the Respondent actually desires a divorce, it is a good idea to file a Cross-petition. In order for the Respondent to mount a proper defense, he must have his own demands before the court in the form of a petition. If he does not file a Cross-petition setting out his expectations from a divorce, he could easily find himself at trial with the agenda being set by his wife’s inflated wish list. The Petitioner usually has 30 days to file an answer responding to the Cross-petition.

    — Insider Tip —

    The initial petition does not give the Respondent much information about what the Petitioner is actually seeking; it is common to demand much more than one may actually expect or want. Husbands are often outraged to read that their wives claim to be incapable of supporting themselves and therefore want all attorney fees paid by their husbands. Wives also typically ask for sole physical custody of the kids and, possibly, a disproportionate share of the assets. I tell clients not to panic or be offended. While your wife may in fact go to war for everything requested in her petition, it is often a standardized “prayer,” a Christmas wish list her attorney puts in every such petition.


    When should you file for divorce?

    If your wife has not already filed for divorce, consider whether a delay in filing your petition is to your benefit or detriment. In deciding whether to delay filing, consider your and your wife’s relative positions given the criteria for awarding custody (Custody Section). Then estimate whether additional time would enable you to improve your relative position as a parent, or, alternatively, whether time is your enemy regardless of your interim efforts. If you want primary custody, it is possible that a delay could provide a period of time when you are aware of what lies around the corner while your wife is not. This waiting period may afford you an opportunity to solidify your position as the primary nurturer, as well as to gather information and evidence. Obviously, these opportunities do not exist to the same extent once your wife has been served with a summons. Typically she will quickly circle the wagons and prepare for battle.

    This online custody guide is adapted with permission from “Civil War: A Dad’s Guide to Custody” (266 pages, softcover) – available in our online store.

     

    End of Content Icon

    Leave a Reply

    Your email address will not be published.