You’ve decided that you want to file for divorce and you’ve rushed to meet with an attorney. You had plans to finalize your divorce petition today, but instead you were served with your spouse’s complaint for divorce. Don’t panic, this may be the perfect situation to file a counterclaim for divorce. Alternatively, you may have filed for divorce but were surprised when your soon-to-be ex responded with a counterclaim. Now you’re wondering what to do next. Counterclaims are a way of answering a divorce complaint while preserving certain requests for relief. Learn more about when counterclaims are used and if you should file a counterclaim in your case.
Overview of Divorce Process
A divorce begins when either spouse files and properly serves a divorce complaint on the other spouse. If you’re on the receiving end of a divorce complaint, the worst thing you can do is nothing. A court can grant your spouse everything asked for in the complaint if you don’t respond. Responding by filing an answer or a counterclaim can preserve your rights in a divorce. Once you’ve filed your responsive pleading to the complaint, you may head directly to mediation, the discovery process, or a hearing on temporary custody and support orders. If you have additional questions, you can contact a local attorney about the process of litigating your case through trial.
What Is a Divorce Counterclaim?
A “counterclaim” is a responsive pleading (legal writing) that allows you to ask the court for certain relief. For example, if you file an answer, you are simply responding to your spouse’s requests in the divorce complaint. Your spouse may have requested custody in the divorce petition, but you can deny your spouse’s request for custody and make your own request for full custody. A counterclaim allows you to ask the court to resolve issues that your spouse failed to include in the complaint. For example, if your spouse failed to list all your rental properties in the divorce petition, you can ask the court to resolve these issues in your counterclaim.
When Should I File Counterclaim Instead of an Answer?
You can use a counterclaim to ask for specific remedies or to preserve your claims. For example, in some states, if you don’t request alimony in the divorce petition, or in a counterclaim, you’re precluded from asking for it later on in your divorce. If your spouse’s complaint didn’t mention alimony, you can include the request in your counterclaim.
You should probably file a counterclaim if you see certain claims or requests missing from the divorce complaint. Another reason for filing a counterclaim is if you're seeking a fault-based divorce. Even if your spouse filed for a no-fault divorce, you can file a counterclaim for divorce on fault grounds like abandonment or adultery. You will need to demonstrate your grounds for divorce in a counterclaim.
Finally, a counterclaim can also protect your case in the event your spouse stops litigating the divorce. If your spouse withdraws or dismisses the divorce complaint, it won’t affect your case if you’ve filed a counterclaim. Because the counterclaim is a legal action in and of itself, your case would continue even without your spouse’s divorce complaint.
Questions for Your Attorney
- I wanted to file for divorce first, but my spouse beat me to it. Do I need to file a counterclaim?
- I agree with most of what my spouse put in the divorce complaint, but he keeps talking about us getting back together. Do I need to file a counterclaim to make sure the case doesn’t get dismissed?
- I’ve already filed an answer, but want to change my response to a counterclaim. Can I do that?