Thursday, May 19, 2011

Served with Divorce Papers, Now What?

The Issue


Last week I answered the telephone and a gentleman from Troy, Michigan asked me, I have been served with divorce papers, now what?

The Answer

First, you must look at the papers that your spouse has filed. There should be a complaint for divorce and a summons at the least. You should also look to see whether there are ex-parte orders and whether your case is scheduled as an e-filing case.

If there is only a summons and complaint, you have twenty-one days from the date that you were served to file an answer to the complaint. The answer should be captioned in the same way as the complaint and you should provide an answer to each numbered paragraph in the complaint. For instance, you should admit or deny the allegations such as admitting or denying that you have lived in the State of Michigan for at least 180 days prior to the date of filing. The answer must be filed with the court and served upon your spouse’s attorney within twenty-one days after you were served.

If you fail to file an answer your spouse can seek to enter a default against you. If a default is entered against you, you will have very little if any input in how the case proceeds. Your spouse can then, after the appropriate waiting period, attempt to enter a default judgment of divorce with very little input from you. If the judge believes that the proposed default judgment is “equitable” then the judge will sign the judgment and that will be that. It is very important that you file an answer within the twenty-one day period.

In addition, when you file the answer to the complaint for divorce, you should file any counterclaim for divorce at that time. If you do not file it when you file the answer to the complaint for divorce, you will not be able to file a counterclaim.

If you have been served with ex-parte orders as well, then you have fourteen days to file an objection to the ex-parte orders. An ex-parte order is an order that the court will grant at the beginning of the case without the presence of the other party and without a motion. If you fail to file an objection and schedule a hearing then the ex-parte order will be a standing order that will be in force until further order by the court or the end of the case. Two frequently granted ex-parte orders are an order to maintain the status quo and a restraining order against transfer of property. A status quo order will require the parties to continue to pay the bills during the divorce as they did during the marriage and a restraining order will stop either party from withdrawing funds other than for everyday use.

If your case is an e-filing case, then you must follow the rules indicated on the forms provided to you to file your documents online. If you try to simply file the documents by mailing them to the court or filing them at the court, this will not work. You have to use the e-filing system in order to preserve your rights.

The best thing to do is to find a divorce or family law attorney as soon as possible and meet with them. You can speak with your accountant, friends or family to help you locate an attorney. You should look to meet with an attorney that limits their practice to family law as many attorneys will handle divorce matters, but that is not their primary area of practice. Even if you believe that you have a simple matter, it is always advisable to have a lawyer help you with this process. There are many pitfalls in this area and you do not want to make things worse than they have to be when you are already facing a difficult situation.