Types of Pleadings in a Divorce
By Beverly Bird
Like any legal matter, divorces can generate reams of paperwork. It can be a bit overwhelming, especially when terminology and requirements vary from state to state. The good news is that most states follow similar guidelines for pleadings. The bad news is that individual states sometimes call the same pleadings by different names.
Complaints or Petitions
A "complaint for divorce" or "petition for dissolution" is the pleading that begins your divorce. If you file, you're the plaintiff or petitioner. Your spouse is the defendant or respondent. Petition and complaints typically include a recital of facts: how long you've lived in the state; when you were married; the names and residences of you, your spouse and your children; and your grounds or reason for the divorce. There's also a section where you can request relief from the court by listing all the things you'd like a judge to order, such as custody, property or support. Some states, such as Massachusetts and Ohio, allow spouses to file joint petitions if they have an agreement regarding all issues of their marriage. Others allow you to note in your complaint or petition that you've reached an agreement.
After you file for divorce, assuming you and your spouse haven't filed a joint petition, you must arrange for service of process on your spouse. This involves making sure he receives your pleadings in a legally acceptable way, such as by sheriff, private process server or certified mail. Your spouse then has a window of time in which to file answering pleadings with the court. He might file an answer, confirming or denying the facts contained in your complaint or petition, and disputing or agreeing with the relief you've sought. He can also file a counterclaim with his answer. A counterclaim acts as his own divorce complaint. He can list his own facts in this document and request his own relief. If he does this, and if you later decide to dismiss your complaint and not go through with the divorce, the court will proceed with the divorce based on your spouse's counterclaim.
In most states, after you file a complaint or petition and your spouse responds, you must each complete and submit financial affidavits. Some states, such as New Jersey, call these forms case information statements, but they involve the same sort of information. They ask for details about your marital property and debts, as well as your personal income and expenses. You must typically sign this document under penalty of perjury.
Pendente Lite Motions
Early in your divorce proceedings, especially in a contested divorce, you may have to ask the court to issue pendente lite orders. Pendente lite orders govern certain issues until your divorce is final, such as temporary custody, spousal support, child support, possession of the marital home, or bill payment. This usually involves filing a motion request with the court, along with an affidavit explaining your position and why you think the court should order what you're asking for. If your motion requests economic relief, you must usually resubmit your financial affidavit.
When your divorce is final, the court will issue a decree or judgment of divorce. A decree or judgment normally takes one of two forms. It either details the judge's decision if you and your spouse went to trial, or it merges with your written agreement if you and your spouse resolved things on your own. Your decree might refer to your agreement and include an attached copy, or it might reiterate all the agreement's terms within the document. In either case, the decree is legally binding. If a spouse doesn't abide by its terms, the other can take him back to court to enforce it.
- Hampshire County Probate and Family Court: Divorce Information
- Rochester Family Lawyer: Pendente Lite Motions and Available Relief
- McIlveen Family Law Firm: What Is the Divorce Decree in North Carolina Divorce?
- National Paralegal College: Separation Agreements
- Ohio Legal Services: Family Law – Legal Separation, Divorce and Dissolution
- Weinberger Law Group: New Jersey Case Information Statement Explained
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.