What Is an Intervenor in a Divorce?
By Beverly Bird
Occasionally, a couple’s divorce can have far-reaching implications, affecting other individuals in addition to the spouses and their children. When this occurs, the law is set up to allow these people a way to protect their own rights in the litigation. Third parties may intervene in a divorce lawsuit if their own interests are at stake when the court issues a final decree. If a court allows a third party to become involved in the litigation, this intervenor is subject to all the same rules and procedural requirements as the spouses.
A state government that has jurisdiction over a divorce will sometimes intervene in a divorce action if the outcome might affect the state’s budget or constitution. Texas intervened in a 2009 lawsuit in an attempt to prohibit the court from granting a divorce. The spouses were partners in a same-sex marriage and Texas does not recognize same-sex marriages at the time of publication. Therefore, the state took the position that a Texas court can’t grant same-sex divorces either. The state's intervention was to contest the divorce in its entirety. Many legislatures, such as Utah’s, allow the state to intervene in a divorce action if one or both spouses are receiving public assistance and if they have children. Intervention allows these states to pursue a parent for unpaid child support to protect the state’s budget from having to financially support the children of such marriages.
When custody is an issue, a third party can sometimes intervene in a divorce action to request that she receive custody, not either of the parents. She might also intervene to ensure that she has visitation rights with the children after the divorce. State laws for taking such an action vary considerably. The Constitution gives parents full authority over their children, so intervention in custody matters is usually only allowed when the court decides that both parents in a divorce are unfit to care for their own children. Some courts will only allow intervention in custody matters by a third party who is or has been the children’s primary caregiver for an extended period of time.
Most interventions in divorce lawsuits stem from property disputes. For example, a spouse’s parents might co-own a significant asset with him. Unless the family legally becomes an intervenor in the divorce action, the court might divide the asset between the spouses without taking the parents' interest into consideration, especially if no deed or title exists to reflect their co-ownership. The parents' intervention would generally be a request to have their own percentage interest in the asset removed from the equation before distribution. They might ask the court to award them 50 percent of the property in the divorce decree, and divide the remaining 50 percent between their son and his spouse, or to divide the value of the asset equally in thirds.
How to Intervene
Intervening requires special permission from the court. One spouse must already have filed a divorce petition or complaint to open the litigation. A third party can then file a motion under the divorce’s docket or case number, asking the court to name him as a party in the legal action. The spouses have the right to respond to the motion and object. When a judge grants intervention by a third party, it permits the third party to make his own arguments at trial and to take part in any court-ordered mediation or settlement conferences.
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.