When drafting this Petition, there are many paragraphs that must be included to make it a valid Petition for divorce. Each state has specific pleading requirements. In Missouri, you must state your name, social security number, address, whether you are a member of the armed forces, that the marriage is irretrievably broken – to name a few. Normally, these Petitions are not given much thought by the Petitioner or his attorney as they are an initial pleading, they are typically a standard pleading or form pleading and there is always the prospect of amending them in the future. Also, the tone of the case may be a lot more amicable at the time of the filing, where, by the time of trial, tensions between the two parties may have escalated.
As such, it is very important to think about what you are pleading for in your initial pleadings. There are five general areas you should consider carefully when determining to how you are going to plead:
1. CUSTODY (If there are children born of the marriage) – When dealing with child custody, there are two types of custody to be concerned with – physical custody and legal custody. In short, physical custody is the type of custody that deals with where the children physically live and with what parent. Legal custody is the type of custody that deals with decision making. The decisions that it governs are major life decisions about your children which are typically medical decisions, educational decisions and religious decisions.
When reviewing your Petition, you need to make sure that you are asking for the custody you want in that Petition. Depending on the way your state labels physical custody, it is important to plead with specificity as to whether you want sole physical custody, primary physical custody, joint physical custody, etc. This also goes for legal custody. You need to make sure that you have pleaded with specificity as to whether you want sole legal custody or joint legal custody.
It is important to be very clear in your Petition so that the opposing party and the Court are on notice as to what you are asking the Court to grant you.
2. CHILD SUPPORT (If there are children born of the marriage) – It is important to include in your Petition which party should pay child support to the other. If your state has a method by which child support is calculated, you may want to make reference to that calculation method. For example, in Missouri you would state that child support should be calculated pursuant to the Form 14 and in accordance with Supreme Court Rule 88.01.
***RETROACTIVITY – If you are the party asking that child support be paid to you, then perhaps the most important thing to include in your Petition is a plea that child support be paid retroactive to the date of filing or date of service. Again, whether you can plead for retroactive child support will be governed by your state statutes. In Missouri, you can plead for child support retroactive to the date of service on the opposing party. NOTE: You may not want to open up this issue, if you feel that you are the party that will be paying child support. If this pertains to you, you will only want to state in your Petition that there has been no arrangements made as to child support at the time of filing.
3. MAINTENANCE (formerly known as Alimony) – If you are seeking maintenance from the opposing party, it is important to plead for it in your Petition. In Missouri, you must plead for maintenance in the body of the pleading and in the “Wherefore” or “prayer” paragraph of the Petition.
If you feel that the opposing party will seek to collect maintenance from you, then you need to state in your Petition either that the opposing party able-bodied and gainfully employed at a substantial income and is capable of meeting his/her own reasonable financial needs, or make no reference to maintenance in your Petition. Should this situation arise, you need to discuss your filing strategy with your attorney.
***RETROACTIVITY – Again, if you are the party asking that maintenance be paid to you, then, in most states, you have the option of asking for a maintenance award that is retroactive to the date of filing or date of service. You should check with your state as to whether you can ask for retroactive maintenance. If you are pleading for retroactivity in Missouri, you need to plead for it in the body of the pleading and in the “Wherefore” or “prayer” paragraph of the Petition as well.
4. ATTORNEYS FEES – Whether you want to plead in your Petition that the opposing party pay for your attorneys fees or not, in my opinion you need to plead for them. Often times when the filing party comes into the attorney’s office, they don’t want to plead for their attorneys fees because they feel that this will upset the opposing party, that they will not be able to settle their case amicably with the opposing party, or that they have no chance at the Court awarding them their fees. Please know that it is hard to tell at the beginning of the case how the case will end. That being said, the case you think you have at the time of filing may be drastically different from the one you find yourself in at the time of trial. The opposing party may also be a totally different person than the person he/she was at the time you filed for divorce.
Not pleading for attorneys fees initially can come back to bite you at the end of a case if you do not plead for them. Often times, this plea is overlooked after a case wears on for months or years and after numerous other pleadings are filed. The focus of the case often shifts to more important issues of the case. If you do not ask for attorneys fees in your Petition, you have no chance of getting them awarded to you at the end of the case. On the other hand, if you plead for attorneys fees, then you can always not seek them should your case go to trial. As to the issue of attorney’s fees, there is no guarantee that a Judge will award you these fees, but there is absolutely no way to get them if you do not plead for them.
5. DISPROPORTIONATE SHARE OF PROPERTY / MISCONDUCT – In some states, you can plead that the Court should award you a disproportionate share of the marital property due to some misconduct by the opposing party during the marriage. Normally you do not have to plead with specificity in the Petition as to what misconduct you are referring to. You can just state generally that the opposing party committed some act of misconduct that led to the breakdown of the marriage, cite to the governing statute and state that you are seeking a disproportionate share of the marital property as a result. What misconduct you are referring to and whether it reaches the level of the court awarding you more than 50% of the marital property will need to be proven to the Judge throughout the case and at trial. However, if you do not state in your Petition that you are seeking the court to award you a disproportionate share of the marital property, the Court cannot consider doing this.
Courts will always make a determination as to physical custody, legal custody and child support. However, if you do not plead for maintenance, attorneys fees or an award of a disproportionate share of the marital property (due to misconduct by the other party), then you cannot be awarded these things should your case go to trial. No matter what the tone of your case is at the time you file your Petition, make sure to plead for any of these things that are relevant to your case so that you are no unpleasantly surprised when you go to trial. If you start out on the right foot with your Petition, then you can focus the rest of your case on other issues that may arise.
Use this article as a checklist when meeting with your attorney to review and sign off on your Petition.
For those that were served with divorce papers:
If you have been served with divorce papers, do not think that what I have written does not apply to you. Your attorney will advise you that you must file an Answer to the Petition for Dissolution that you have been served with. With my Answer I always couple it with a Counter Petition for Dissolution of Marriage. The Counter Petition is considered by the Court the same way a Petition for Dissolution is considered. In your Counter Petition, you can include any and all of the above referenced information. Again, it is important to plead correctly for everything you are seeking in your Counter Petition for Dissolution so that you are not surprised at trial that you did not ask the Court for these things.