Starting an Action for Divorce: Part 2

You’ve drafted your initial divorce documents and filed them with your county clerk. You’ve spoken to your spouse and come to find that he or she either agrees to cooperate with the divorce and will accept service, or that personal service needs to be effectuated. You’ve arranged for a third party to serve your spouse. You’ve managed to serve your spouse within the 120 day window. 

What comes next? 

Your spouse now has twenty to thirty days to respond to your initial filing. If the initial filing was a Summons with Notice, your spouse may file a Notice of Appearance and Demand for Complaint, telling both you and the court that he or she is participating in the divorce action and providing contact information where further documents can be sent. If self-represented, the contact information will be your spouses, but if he or she has hired an attorney, it will be the lawyer’s contact information. In the event that the initial filing was a Summons and Complaint, your spouse must respond with an “Answer.” After the responsive documents are filed with the Court, they will be sent to you or your attorney by mail. 

While the law is relatively specific with regard to how the Defendant should respond to initial filings, the courts prefer that all cases are determined “on the merits.” This means they prefer to give some leniency to allow for both parties to participate, then to simply make a decision in one person’s absence. Therefore, if your spouse responds in some other manner or slightly outside of the timeframe, the court will likely allow him or her to join in the action. 

What happens after your spouse responds? 

Once you have filed your documents and your spouse has filed the responsive papers, “issue is joined.” This means that both parties have formally presented themselves for the matter to go forward. If there is any possibility that the case could be settled, the attorneys or self-represented parties should try and speak to see where each party stands. Remember, the courts are inundated with divorce cases, so if it’s possible for parties to do some of the heavy lifting before using court resources, it is greatly appreciated. 

If the case cannot be settled, either party may make an official request with the county clerk to have a judge assigned to the case. This is done through the filing of a “Request for Judicial Intervention.” When filed with a Request for Preliminary Conference, the court will respond by providing the parties with a court date, along with instructions on steps to take prior to the court date. The preliminary conference outlines the open issues for the court and creates a schedule for the parties to exchange all relevant documents. 

What happens if he or she does not respond? 

If your spouse chooses not to respond, he or she is considered in default. This means that you may proceed with the divorce in his or her absence. Much like an uncontested divorce, most default divorce are submitted “on the papers.” A series of documents may be prepared, filed and sent to the Defendant, notifying him or her that a default divorce has been filed. In the event that there are limited issues in the divorce, the judge may simply sign the judgment of divorce and your matter will be finalized. However, if there are significant issues your matter may require an “Otto hearing,” in which the judge will require a one-sided trial, testimony and documentary evidence as to spousal support (maintenance), child support and/or custody. 

Stay turned for a future post regarding the benefits and drawbacks of filing a divorce action upon default.