When You Have Been Served Divorce Papers

If you’re reading this, you’ve probably been served divorce papers. Now, you’re wondering what to do. If your husband or wife served divorce papers, what you received was a “Summons and a Petition.” This makes you the “respondent” in the divorce case.

When you are served divorce papers, it’s very important that you take the time to read the papers carefully. Your spouse is the “petitioner” and the Petitionis the document that explains what it is that your spouse or domestic partner is seeking.

On the other hand, the Summons informs you of your rights during the divorce process. The Summons has what are called “restraining orders,” which prohibit or limit you from doing certain things. For example, these standard restraining orders will tell you what you can and cannot do with your:

The Summons does more than tell you what you can do with your personal assets amid the divorce process. It also prohibits spouses and domestic partners from moving out of state with their children, and it bars them from applying for or renewing a U.S. passport for any of the children the couple have together. This measure is to prevent parents from kidnapping their children and taking them overseas. However, a parent may get around this passport issue if they have prior written consent from the other parent or if they obtain a court order that says otherwise.

What Are My Options?

Once you have been served divorce papers, you’ll have not one, but four different options:

1. You do absolutely nothing.

You have the option of doing absolutely nothing, but this is not recommended. If you were to choose this route, your spouse or domestic partner is probably going to get everything they ask for in the Petition.

When the judge makes a decision about property and debt division, spousal support, child custody and visitation (if you have minor children together), he or she will base their decision on the information your spouse provided in the Petition.

This is commonly referred to as a “default divorce” because you default by failing to respond, and because you refuse to be involved in the divorce process. By failing to respond, you waive your right to contribute to the case and take part in the negotiations.

2. You do nothing because of a notarized agreement.

If you have a written notarized agreement with your spouse where you and your husband or wife agree to divorce, and you have both agreed about property and debt division, spousal support, child custody and support (if applicable), you also have a “default divorce.” What makes it a default divorce?

You technically have a default divorce because you don’t file a response; however, you still have a say in the outcome because you entered into a written agreement with your spouse. This situation is known as a “default with agreement.”

3. You go to court and file a response but enter into an agreement.

This is one of the most common options pursued by our clients. With this option, you would file a response with the court, but you would go ahead and work out an agreement with your spouse about the divorce-related issues, such as assets, debts, spousal support, and child custody.

This type of divorce is called an “uncontested” or “collaborative” divorce because you are not fighting over the divorce issues with your spouse. Instead, you are negotiating until you reach a fair agreement that you both find satisfactory.

4. You file a response but you disagree with your spouse’s wishes.

The last option is called a “contested divorce” and with this one you file a response with the court stating that you disagree with your spouse’s requests in the petition. Such cases are considered to be “contested” because the spouses do not agree on the terms of their divorce and they need a family court judge to decide for them.

“How much time do I have to file a response to my spouse?” If you decide not to go the default route and you respond, you have to respond within 30 days of the date you received the Summons and Petition.

What if I’m in the Armed Forces?

If you’re in the military, there are special rules under the Servicemembers Civil Relief Act that apply to you. For example, if you’re on active duty and your non-military spouse files for divorce and you can’t respond within the 30-day timeframe, it does NOT mean your spouse obtains a default divorce and you lose your rights.

Instead, the Servicemembers Civil Relief Act protects your rights when you’re unavailable because of your job. Under the Act, the divorce proceeding is extended if you cannot respond because you’re on active duty. In other words, military spouses are protected from default judgements for failing to respond to a divorce petition or for failing to appear at a trial because they’re on active duty.

Securing Legal Representation

Divorce is a complicated process and unless you’re a divorce attorney, you don’t know what you don’t know. For this reason, we urge all spouses to seek the advice of an experienced divorce lawyer whenever they are served divorce papers.

Related: 7 Tips for Negotiating a Divorce Settlement

At Claery & Hammond, LLP, we offer free case evaluations to all prospective clients. Before you respond to the Summons and Petition, give us a call and set up an appointment with a member of our legal team. We’d be glad to answer your questions and explain the best legal options in your case.