What is an answer and counterclaim?

Posted on Mar 1, 2021 by Katie Carter


It can be confusing to know and understand all the steps in the Virginia divorce process, much less what timelines are associated or how the court requires you to respond. I’m tempted to say, “Hey, that’s what I went to law school for,” but that’s not actually true. That kind of thing isn’t taught – or at least, not with any real specificity – in law school. Law school is almost entirely hypothetical.

So, anyway, my point is that, in order to learn or know these things, you really do have to be involved in the day to day practice of the law. If you aren’t, well, you can’t really be expected to know. And that’s what we’re here for.

We’ve talked about a complaint before; it’s the legal document that opens up a lawsuit with the court. It’s a filing, called a pleading, that tells the court that all is not well between two parties. It specifies the issues, and requests the specific relief that the filing party (the “plaintiff”) wants awarded.

A complaint can be a document filled with details, in a case where a party is alleging that some fault has been committed (because you have to have a reasonable belief that this has occurred to file on fault, and to demonstrate that reasonable belief you’ll need to include some evidence). A complaint can also be a document that just establishes what the statute requires for the specific relief to be granted, like in the case of an uncontested divorce. In an uncontested case, the complaint isn’t juicy or interesting at all.

After a complaint is filed, it’s returned to the attorney’s office for service on the opposing party. Once the opposing party is served, they have 21 days to respond.

An answer – or an answer and counterclaim – is the responsive document to the plaintiff’s complaint.

The defendant (the second party to the suit) files an answer, and sometimes a counterclaim, with the court. It’s the defendant’s first opportunity to respond to the allegations the plaintiff set forth, to make his or her own allegations against the plaintiff, and to request that a specific type of relief be granted.

The answer is the part that responds to the plaintiff’s allegations; the counterclaim is where the defendant has a chance to set forth his or her own allegations, and request his or her own relief.

It’s also a document that falls within the category of a pleading, because it’s a formal document filed with the court asking it (the court, that is) to do something. It moves a lawsuit forward.

Once an answer and counterclaim has been filed, the plaintiff has a further 21 days to respond to any allegations in the answer that require a response.

Does it matter who files first? Is it bad if I’m the defendant?

No. You’re thinking that it’s a problem to be the defendant because of its context in criminal cases. Since the state prosecutes these cases, the state is the plaintiff and the accused person is the defendant.

There is no negative inference in a divorce, custody or support case. There is no benefit to filing first, or preference given for having done so.

The only difference is that the plaintiff, in a trial, puts his case in chief on first, and the defendant goes second. But it doesn’t make a difference to how the judge rules, or to the preference assigned to either party. So, don’t worry about trying to hurry up to file first.

Still, there are time limits assigned, so you’ll want to be prompt and responsive, if something has been filed and served on you.

Answer and Counterclaim in a Contested Divorce

Procedurally, there are some differences between how an answer and counterclaim functions in a contested or an uncontested divorce.

In a contested divorce – meaning a divorce where there is no agreement between the parties and where, for the time being at least, it looks like a trial will be necessary to divide the parties’ assets and liabilities – an answer and counterclaim is filed at the beginning of the case. Together with the complaint, these documents formally open up the case, and allow each party’s lawyers to move forward with the procedural elements of the case – filing discovery, setting hearings, requesting sanctions, scheduling settlement conferences and, ultimately, setting trial dates.

Your answer and counterclaim must include your grounds, and your supporting evidence, but this document does not prove anything. It merely sets forth the claims that you must later substantiate with evidence. It also requests the relief – like equitable distribution, spousal support, child support, custody, etc – that you would like the court to award. If you are filing an answer and counterclaim, then your husband or partner filed first, so you’ve seen how this reads.

Don’t be alarmed. If you see that your husband has asked for, for example, spousal support, but he’s the higher wage earner, that doesn’t mean he’ll receive spousal support. It means that his attorney put it in because he knows that, if he doesn’t plead it, he can’t ask the court for it later. So, if circumstances were to change, but it wasn’t in the pleadings, his client would be SOL – a potential liability situation that no attorney wants to face. We ask for more than we can get. Always.

Answer and Counterclaim in an Uncontested Divorce

Though your contested divorce could turn out to be uncontested later, and then you move forward with an uncontested divorce after first filing on a contested basis, there is an entire other category of uncontested case.

In many cases, we negotiate a separation agreement first, and then file for an uncontested divorce second.

Procedurally, it looks much the same. A complaint is filed. A complaint is served. The defendant has 21 days, and a couple of options available.

1. Sign a waiver.

In an uncontested divorce, we often include a waiver when we serve a husband. It just says that the husband accepts service, submits to jurisdiction of the court, and doesn’t require any further communication.

2. Ignore it.

Technically, default – not responding within 21 days – is an option, of sorts. I suppose it’s always an option, but it does mean that the opposing party can move forward without any further notice to you, so it’s generally not the most desirable course of action.

3. File an answer and counterclaim.

Yes, even in an uncontested divorce, you can file your own answer and counterclaim. In fact, as an attorney, if you’re the defendant, I would recommend that you do.

If you sign the waiver – which is fine, I try to get husbands to sign them all the time – the case will move forward with no further notice to you. If you file an answer and counterclaim, opposing counsel will need to get your signature on the final decree (and, in general, I recommend reviewing the final decree before it’s entered) or, alternatively, set a hearing to get the divorce entered.
You can’t really change a separation agreement without the signatures of both parties on the change, but it’s wise to read the final decree to ensure that it reflects the separation agreement accurately.

As always, I recommend that, if you see something that is confusing or that you don’t understand, talk to an attorney. It’s much cheaper to correct something now than it will be later on down the line – not to mention that it could have a terrible impact on your overall case, depending on what the issue is.

An answer and counterclaim, like any other pleading, is an important document, and one that should be taken seriously.

For more information or to schedule a consultation with one of our attorneys, give our office a call at 757-425-5200.