In order to get in front of a judge who can make a decision in your case for divorce, you have to file pleadings. The judge starts off as passive in regard to your case. It is up to you and your lawyer to ask her to sign an order. You also have to convince her to do so, usually in the face of opposition by your spouse’s attorney. This is requested in a formal written document that you file with the court clerk. The clerk then puts the document in a case file and it is presented to the judge. Pleadings refers to all of the documents filed in a case.
Note Pleadings are documents filed with the court in a lawsuit that ask the judge to order something you want. The first pleading in a divorce is a complaint for divorce.
Rules for Pleadings
Almost every court has detailed rules about the way pleadings must be filed. The court might tell you, for example, that pleadings must be printed on a 8.5-by-11-inch white sheet of paper and be double-spaced and in black, twelve-point Times New Roman type.
The rules will also tell you the titles of pleadings, what information they must contain, and who must sign what. They may say whether faxed signatures are acceptable or original signatures are required. Some pleadings may require an affidavit (a sworn statement signed by you before a notary) in a certain form or using certain words.
There are also timing rules for when pleadings must be responded to and instructions on what to do if the date falls on a weekend or a holiday when the court is closed.
There are rules for lawyers entering or leaving a case and substitutions of counsel.
You start a divorce with a complaint for divorce. Also referred to as a petition or a bill in certain jurisdictions, a “complaint for divorce” is the first pleading that opens your case and starts the litigation process. Your lawyer files the complaint with the clerk’s office in the courthouse in the county where you live. He hands it across the desk to the clerk in a similar way as making a bank deposit. There is a filing fee, typically around $100. The clerk then stamps a copy of the complaint with a date for you to keep for your files and records.
What’s in the Complaint
The heading of the complaint, called the caption, contains the name of the court, the names and addresses of you and your spouse, a place for the clerk to put a case number, and the title of the pleading, which in this case is “complaint for divorce.” The person filing the complaint is the plaintiff, and the other person is the defendant. Within the complaint is a series of numbered paragraphs that provide brief statements of each of the facts necessary for your case. The following sections contain a few examples.
- 1. The plaintiff is an adult resident of (name of state) and has been such for (number of) years before the filing of this complaint.
- 2. The defendant is an adult resident of (state) and has been such for (number of) years before the filing of this complaint.
- 3. The parties were married on (date) in (town, state) in accordance with the laws of (state).
- 4. There were (number of) children born or adopted of the marriage of the parties, namely (child’s name), who was born on (date), and (child’s name), who was born on (date).
- 5. The children are in the case and custody of the plaintiff.
- 6. The children have resided with the plaintiff and defendant during the past (number of) years until the parties separated.
- 7. The plaintiff is a fit and proper person to have custody of the children.
- 8. The plaintiff is unaware of any other proceeding or case involving the custody of the children.
- 9. The parties separated on (date), and they have lived separate and apart without marital relations for more than a year prior to the filing of this complaint.
Note You may file alternative grounds for divorce if you have more than one. You only have to prove one to obtain a divorce.
- 10. The defendant is employed as a (job title) and makes approximately (number of) dollars per year and is well able to pay child support and alimony.
- 11. The plaintiff is employed as a (job title) and makes approximately (number of) dollars per year, which is not sufficient for him to be both self-supporting and support the children of the parties.
- 12. During their marriage, the parties have acquired a marital residence, bank accounts, automobiles, retirement funds, and other assets in their joint names or individual names, which are marital property.
- 13. The parties obtained a mortgage in their joint names to purchase the marital residence, and the mortgage is marital debt.
Prayer for Relief (What You Are Asking For)
For the foregoing reasons, the plaintiff prays that the court:
- grant him a divorce from the defendant;
- award him custody of the children;
- determine an access schedule for the defendant;
- determine the amount of child support and order the defendant to pay that amount through an earnings withholding order;
- award an amount of alimony to the plaintiff and order the defendant to pay that amount through an earnings withholding order;
- identify and value the marital property of the parties;
- determine an equitable distribution of marital property and enter appropriate orders for division, transfer, and sale of marital property;
- order the defendant to pay him a monetary award to adjust the equities of the parties and reduce the monetary award to a judgment;
- order the defendant to pay or contribute to his attorney’s fees;
- grant him any other appropriate relief
Signature and Verification
Your attorney will sign the complaint and add her address and telephone number. You will probably also have to sign the complaint, under penalties of perjury, to verify that it is true and accurate.
Attachments
The rules will require attachments to the complaint, such as an information cover sheet and your financial statement.
Caution The complaint outlined here is only an example. If you are going to try to prepare your own complaint, you will have to revise it to state the facts in your case and to comply with the laws and rules of your state. Check the Internet or the court clerk’s office to see if there are complaint forms available, or check out a divorce file at the clerk’s office to see how other lawyers prepare complaints.
When you file your complaint, the clerk will assign the next-available case number to it and write it on the complaint. Bring an extra copy of the complaint to the clerk's office when you file. The clerk will attach a summons to the copy and give it back to you. This is called the service copy.
Serving the summons and complaint on your spouse will give him notice that a complaint has been filed and the opportunity to be heard in court. The summons tells the defendant that he must respond to the complaint within a certain number of days or the court may find him in default (which is like forfeiting a basketball game by not showing up) and rule against him.
The legal term for notifying your spouse by serving him a copy of the summons and complaint is called service of process. It is the process by which the court obtains personal jurisdiction over the defendant so he is bound by the court’s decision.
Each state has different rules for how service of process is to be accomplished.
Personal Service
Personal service involves someone handing the summons and complaint to your spouse. It can be served at home or work or anywhere else. You can ask the sheriff to do it or hire a professional process server or ask someone you know to do it. Most courts won’t let you serve it yourself. The person who serves it then files an affidavit of service with the court stating who, when, and what pleadings were served. Most states require you to serve the defendant, but some states will permit service on any person of suitable age and discretion who regularly resides in the same dwelling as the defendant.
Certified Mail
Your state may authorize service by certified mail, restricted delivery, or signed return requested. If your spouse won’t sign for the mail, then this won’t work. If it does go through, you can file a copy of the original signed return with the court with an “affidavit of service by mail.”
Alternative Service
If you cannot find your spouse, or your spouse is actively evading service, you can file a motion for alternative service. A motion is another type of pleading that asks the court to do something that is filed after the initial complaint.
You have to attach an affidavit that you have made diligent efforts to locate or serve your spouse and have been unsuccessful. Describe those efforts one by one, such as service attempts at different times during the day; searches of the phone book and Internet; and inquiries to her last-known employer, friends, relatives, and neighbors.
Alternative service may consist of posting notice on the courthouse bulletin board, posting or mailing to your spouse’s last-known address, or publishing notice in your local newspaper.
After service of the initial complaint, all other pleadings are served by regular mail or hand delivery. Each pleading will include a certificate of service that states you mailed or hand delivered a copy to your spouse at her address of record and the date of mailing or hand delivery. E-mails and faxes are not proper methods of service under most court rules.
Note You must serve a copy of the complaint and summons on your spouse in order for the court to have jurisdiction over her.
The defendant may respond to the complaint with preliminary motions to dismiss the complaint for various reasons, including lack of jurisdiction, defective service of process, or failure to state a cause of action.
She may file a motion for a more definite statement, which means the complaint is not clear enough to put her on notice of your claims.
If you have both unknowingly filed complaints and opened two separate divorce cases, a motion to consolidate is in order.
A motion for summary judgment may be filed when there are no facts in dispute and the court can decide the case on the law. In a contested divorce, however, the facts are always in dispute.
Motions may be accompanied by a memorandum, points and authorities, an affidavit, and a proposed order. You must include a certificate of service and mail a copy to your spouse.
Other motions may be filed as the need arises during the proceedings when you want the court to act.
You may file an opposition to your spouse’s motion within the number of days provided by the rules for opposing the motion. The opposition will include a memorandum, citations to laws and appellate opinions in previous cases, a proposed order, and a certificate of service.
The defendant may file a reply to your opposition.
After the time provided in the rules for opposition and reply have passed, the court may rule on a motion or set a hearing for the parties to argue the motion prior to ruling. The court will either grant or deny the motion.
Motion for Default Judgment
If no answer is filed within the required time limit, you may file a motion for a default judgment. The clerk’s office will then enter the default on the court’s record and send notice to the defendant giving her one last chance to respond.
If the defendant still does not answer, the court will hold a hearing with only the plaintiff and his attorney and most likely give the defendant everything he is asking for, including custody, child support, alimony, and attorney’s fees.
To avoid this result, the defendant must file a motion to set aside the default showing good reasons why she did not file an answer in time. If successful, the defendant will be allowed to file an answer to your complaint for divorce.
Answer
Once the preliminary motions, if any, are decided, the defendant must file an answer to the complaint. The answer tracks the complaint. It has a caption with the name of the court, the parties, the case number, and title of the pleading and is known as an “answer to complaint for absolute divorce.”
The answer will have numbered paragraphs that correspond to those in the complaint. In each paragraph, the defendant will write one of the following statements:
- An admission of the allegations in paragraph (#) of the complaint
- A denial of the allegations in paragraph (#) of the complaint
- A claim to be lacking sufficient information to admit or deny the allegations in paragraph (#) of the complaint
The defendant can also admit part of an allegation and deny another part. For example, it would be proper to answer, “The defendant admits the allegation in paragraph 10 of the complaint that he makes approximately $100,000 a year and denies that he can well afford to pay alimony and child support.”
She can also add a brief statement to an answer when it is appropriate. For example: “The defendant admits the allegation of paragraph 7 of the complaint that the plaintiff is a fit and proper person to have custody of the children and states that the defendant is also a fit and proper person to have custody of the children.”
The answer concludes with a prayer for relief asking the court to:
- dismiss the plaintiff’s complaint for divorce; and
- grant the defendant such other relief as may be proper.
The answer will be signed by the lawyer and verified by the defendant. Add a certificate of service, an information cover sheet, and a financial statement.
Note You may want the case dismissed if you don’t want a divorce or just don’t want to deal with it right now. Or you may want the plaintiff’s case dismissed so you can proceed on your countercomplaint.
Countercomplaint
The defendant is permitted to file a countercomplaint (which may be called a counterclaim, or cross-bill, or some other name in your jurisdiction).
The countercomplaint is in the same format as the plaintiff’s complaint. It is the pleading in which the defendant tells the judge her side of the story and asks the court for the relief she wants.
A countercomplaint is not required, but if you do submit one and your spouse withdraws his complaint, you do have the option of proceeding with your countercomplaint. Otherwise, you have to start all over.
Response to Countercomplaint
You will have a certain amount of time to respond to the countercomplaint or you will be in default. You may respond with a motion if you wish, but after any motions have been ruled upon, you will be required to also file an answer to the countercomplaint. The answer to the countercomplaint follows the same rules as does the defendant’s answer to the previous complaint.
Summary
You begin the legal process of obtaining a divorce by filing a complaint with the clerk of the court. The complaint and other documents filed in your case are called pleadings and are governed by the rules of the court. In the next chapters, we will discuss the rules of evidence, the legal process, and what happens in your divorce trial after the initial pleadings are filed.