- Evan Humphreys
I’ve Been Given Divorce Papers. What Should I Do Now?
A divorce is one of the most difficult experiences a person is likely to have. It means the break up of a family, the loss of time with children, and a lot of changes to your finances. When someone receives notice that a divorce has been filed, a million questions start going through their mind. The first one is usually: what should I do now?
Luckily, that question is generally easy to answer. Divorce cases are subject to a few specific timelines in the early stages. This post will first explain what “getting divorce papers” means from a legal perspective. Second, it will discuss the deadlines a person who “gets divorce papers” has to meet. Finally, it will warn you about what happens if you do not meet these deadlines. And, as always, there is the disclaimer that each case is different and other facts may require alternate courses of action.
What “getting divorce papers” really means
This is a phrase that a lot of non-lawyers use. They talk about “divorce papers” or “divorce paperwork”. Sometimes, lawyers will use these phrases, too. But what does that really mean?
Basically, there is one essential document that every divorce case must have. That document is called the Petition (sometimes called a Petition for Dissolution of Marriage or Petition for Divorce). No divorce case can exist without this piece of paper. The Petition has a caption on the first page that states the county the case is being filed in, the names of the spouses, and a case number (for example, FD-2022-1). The Petition just lists the very basic things that the person filing (called “the Petitioner”) wants. It does not have to follow any specific form or make very specific requests. It just has to give the most essential information about the case, such as whether there are children and whether alimony is being requested.
There is a second document that almost every divorce case must have. That second document is the Summons and Notice of Automatic Temporary Injunction (or just Summons). The Summons has to be more specific than the Petition. It tells the person who did not file the divorce case (called “the Respondent”) that they have 21 days from the day they are served to respond to what the Petition says.
If there is no Summons, then the Respondent must sign something called a Waiver of Summons (sometimes called just a Waiver or a Waiver of Summons and General Entry of Appearance). Every case must either have a Summons or a signed Waiver.
The Notice of Automatic Temporary Injunction part refers to a specific list of things that both spouses are prohibited from doing once the case is filed. This includes destroying evidence, hiding money or assets, hiding the children from each other, and harassing each other. This notice must be attached to either the Summons or Waiver. Violating these prohibitions can get you in very serious trouble with the court.
Sometimes there are other documents included with the Petition and Summons/Waiver. There might be a request for Temporary Orders, which are things that the Petitioner wants the court to do before the divorce is granted. There may be an Order or a Notice for a hearing, which tells the Respondent the time and day they have to be in court. But, at the very least, the first two documents discussed must be included.
Now that we understand what “divorce papers” are, we need to discuss what “getting” them means. A person cannot just be handed divorce papers by anybody. They cannot just be sent by regular mail or emailed. To legally “get” the divorce papers, a person must receive them in one of a few specific ways that the law recognizes as proper. We call this “service”.
Generally, your average citizen can be served in one of two ways. First, they can be personally served by a sheriff, process server, or someone specifically appointed by the court to make service. They can be personally served pretty much anywhere. Service can also be left at a person’s house with someone aged 15 or older who lives there. Second, a person can be served by certified mail, restricted delivery, return receipt requested. They or someone in their house aged 15 or older must sign the return receipt (a green card attached to the mail). In both events, the Petitioner must show proof to the court that the Respondent was properly served.
What to do once you have been served
Hopefully, you understand what “getting divorce papers” means from a legal perspective. Now, let’s say you have been properly served with your papers. What is your next step?
Like it says above, the Summons will state that you have 21 days from the day you are served to respond. What does that mean? You respond to a Petition by filing something called an Answer, which lists every paragraph in the Petition and says whether you agree or disagree with what it says. You can also file a Counterclaim if you want something different. For example, if the Petitioner does not want anyone to pay alimony, but the Respondent does, the Respondent should file a Counterclaim.
The Answer/Counterclaim does not have to follow any specific form. It can be typed up or handwritten. It just needs the same caption as the Petition, a response, and the signature of the Respondent with a mailing address. You give a copy of your Answer to the court clerk where the case was filed and mail a copy to the Petitioner or their attorney.
While this 21 day time limit is generally correct, there are a few important exceptions to keep in mind. First, you can extend the deadline to respond by filing a request for an additional 21 days. Second, you may be required to appear in court before your 21 days are up. A Respondent only has to get five days notice of a Temporary Order hearing. So, even if you have extra time to respond, make sure you go to court on time.
What happens if you do not respond?
Ignoring a Petition and Summons can have very bad consequences for the Respondent. You can be held in “default”, meaning you can lose your opportunity to respond at all. That means the Petitioner might get whatever they want even if you want something different. Sometimes, there are ways to respond even after you are in default. But, generally speaking, you want to go to every court date and respond to everything in writing as soon as possible.
As always, you might get different advice from an attorney depending on your situation. What if you were not properly served? What if there was no Summons or Waiver? What if you cannot find the person you want to serve? What if they are an inmate?
While we cannot cover every possible scenario in one post, the best advice you can get is to speak with an experienced and competent attorney. If you have been served with divorce papers or if you are having trouble serving someone, contact the Law Office of Evan Humphreys today for intelligent and compassionate assistance.
The content of this post is provided for informational purposes only and is not intended to be taken as legal advice.