What Happens When You Are Served Divorce Papers?
By Beverly Bird
Hemera Technologies/AbleStock.com/Getty Images
Most people are not able to think clearly in the hours or even days after they receive divorce papers. Although the laws are slightly different from state to state, most courts understand this and give you time to respond. You don’t necessarily have to act immediately, but you must do something eventually if you’re going to protect your rights. No state forces a spouse to stay married just because her partner does not respond to her divorce petition -- she’ll just move forward with the proceedings and obtain her divorce without the spouse's participation.
What You Should Do
Most states offer a variety of ways in which you can respond to the initial divorce petition, or complaint as it is sometimes called. For example, in New Jersey, you can file a simple one-page document called an appearance. It alerts the court that you want to be involved in the case as it progresses. It may be helpful to enlist an attorney to better understand the communications and their deadlines throughout the divorce process. You can also file an answer, which in most states is a document that allows you to respond in writing to each issue your spouse raises in her complaint. Spouses usually have the right to file a counterclaim, which is essentially is the same as a divorce complaint except that the court receives it after your spouse has filed papers to begin the litigation. In a counterclaim, you can respond to your spouse’s allegations, as well as make your own allegations and ask for terms you want from the divorce as well. The court clerk can tell you which documents your state accepts.
At a minimum, you should have about 20 days to file a response with the court, but this varies from state to state. In most cases, the divorce papers you receive will include a document called a summons or citation, depending on where you live. This document tells you how many days you have in which to respond with court papers of your own. If you don't receive a response date, check with your county's court clerk.
The Next Step
When you file your answering documents with the court, you must serve your spouse with a copy, just as she served her divorce papers on you. Filing and serving your answer puts both the court and your spouse on notice that you want to be involved in the case. After you've done this, proceedings cannot take place without you being made aware of them. Once the court receives your answer, you’ll likely receive a notice directing you and your spouse to meet with a judge for a management conference. At that time, the judge will want to know if you can reach an amicable settlement or if your divorce is likely to require the intervention of the court. If the latter, the judge will inform you what to do next, especially if you need court orders to stabilize your situation until the divorce is final.
Missed Response Deadline
If you miss your deadline to respond, don’t despair -- all is not lost. Call the court as soon as possible to find out if a hearing has been scheduled that would allow your spouse to move forward without your participation. You can usually appear in court on that date and file your response at that time. If a hearing isn’t scheduled, ask for an extension to file an answer as soon as possible. If you do nothing, your spouse will be able to obtain a divorce decree by default, and the judge will most likely award all her requests.
Read More: Reasons for a Divorce Dismissal
- Legal Aid Society of Hawaii: Divorce – What to Do if You Get Divorce Papers From Your Spouse (PDF)
- DivorceLawfirms.com: What to Do if You’ve Been Served Divorce Papers
- Legal Aid of West Virginia: FAQS 5 – Divorce – When You’ve Been Served
- Woman’s Divorce; Response to Divorce Filing; Brett Sembre
- Divorce Source; New Jersey Divorce Procedure; Theodore Sliwinski, Esq.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.