How to Draft a Counter Claim in a Divorce
By Beverly Bird
If your spouse has filed a complaint for divorce, it’s important that you answer it in some fashion. You don’t necessarily have to file a counterclaim in response, although laws vary from state to state. In most jurisdictions, you can simply file an answer, letting the court know you want to take an active part in the divorce proceedings. However, if you file a counterclaim as well, it acts as an insurance policy against your spouse canceling your divorce if she changes her mind.
Visit your state’s judicial website. Many states offer free downloads of the divorce documents used in their courts. If your state doesn’t offer a form for a counterclaim, you can draft one of your own. A counterclaim is usually a two-part document, more commonly called an "answer and counterclaim" or an "answer and counter-complaint." The document includes a response to your spouse’s complaint -- or your answer -- plus your own complaint, which is the counterclaim or counter-complaint portion.
Complete the answer part of your document. If you’ve downloaded a form for an answer and counterclaim, check off each box in the answer segment to indicate whether you agree or disagree with the corresponding paragraph in your spouse’s complaint. This is relatively easy, because your spouse’s paragraphs should be numbered. Simply match her numbered paragraphs to the numbers on your form.
Copy the caption and first paragraph of your spouse’s complaint, if you’re drafting your own answer and counterclaim. Beneath the first paragraph, list numbers for each of the paragraphs in your spouse's complaint. Next to each number, write “admitted,” if you agree with what she’s stated, or “denied,” if you do not.
Write your counterclaim beneath the answer segment of your answer and counterclaim, if you’re drafting your own. After you’ve answered your spouse’s paragraphs in the first half of your document, write “counterclaim” in large bold letters. Beneath that, copy the same numbered paragraphs of her complaint to enter your own information. For example, her paragraph #1 might state the date of your marriage. You can copy this verbatim as your first counterclaim paragraph. Her paragraph #2 might state that she does not have enough income to live on her own. Your paragraph #2 would state that she does have sufficient income, unless you're willing to pay spousal support.
Fill in the necessary information in the counterclaim segment of your document, if you’ve downloaded a form from the Internet. The form will prompt you for your answers, such as the date of your marriage and your grounds for divorce.
Tell the court what you want from the divorce at the end of your document. In most states, this is called your “relief.” If you’re drafting your own document, you can copy the language from your spouse’s complaint but phrase it to name your own requests. For example, if she asks the court to award custody to her, you might use similar language to ask the court to award custody to you. If you’re using a downloaded form, you can simply check off the appropriate boxes, telling the court what you want.
If you simply file an answer to your spouse's complaint, and she then dismisses her complaint, this terminates your divorce process. However, if you file a counterclaim and she withdraws her complaint, your divorce will proceed unopposed in most states. A counterclaim is your own version of a divorce complaint.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.