When he filed for divorce — but you don’t want a divorce

Posted on Sep 23, 2019 by Katie Carter

Sometimes, divorce and custody cases can be a little bit bizarre. I recently talked with a lady at Second Saturday who had the strangest story to tell. She and her husband are military, and he’s PCS’ing (getting a permanent change of duty station). She stayed behind and was closing things out in the home they were renting, but planned to join him.

About a week before she planned to leave, she was served with divorce papers. She – I could tell from her face – was totally shocked and more than a little blindsided. She told me how everything was totally normal before he left; they engaged in – to put it delicately – marital relations, and he had called her every day since and told her he loved her.

So, needless to say, the divorce complaint was a huge shock to her. She knew she needed to meet with an attorney, but she insisted over and over again that she did not want a divorce.

It’s unusual in a lot of ways. For one thing, it’s rarely a complete surprise, and it’s also even more unusual that the parties would have gone on as totally normal in the meantime. In fact, she still planned to follow him on his move west, even after receiving the complaint.

In a lot of ways, military families have it rough. What could she have done? Though they lived here (in Virginia) last, she has no family, no ties, and not even a job here. Though she has no ties, no family, and no job in the place where he was PCS’d, she didn’t have any other plans either. She wasn’t close with her family, and didn’t want to move home to where they were living, either. And, of course, this all came as a shock, and it’s difficult to make those choices with very little lead time at all.

What options do you have once your husband has filed for divorce?

I can’t explain the choices that the husband made here. I think it’s more than a little strange, and, frankly, I’ve seen a lot of divorce. I don’t know why he’d go straight to filing something when he could have tried to negotiate a separation agreement, if he really wanted a divorce. I don’t even know if he really wanted a divorce or just wanted to shock or scare her.  It’s quite weird to file for divorce but at home to continue to act like things are the same and, in fact, to plan to move together to the next permanent duty station.

Still, once a complaint for divorce is filed, you have to act. If you don’t respond, you will be found in default, and the case can proceed without further notice to you. That means that your husband (or his attorney, if he’s represented by counsel) could schedule a final divorce hearing and you wouldn’t even have to be notified. You wouldn’t have an opportunity to appear and present your own evidence. So, needless to say, this is not an ideal situation in which to find yourself.

Once you’ve been served, you have 21 days in which to respond. Twenty one days. It’s not a lot of days, especially considering you will almost certainly have to retain counsel to do so. Now that your case is litigated (that is, it’s in the courts), it’s going to be more expensive to hire an attorney. Cases that involve court appearances are automatically more expensive and more time consuming, and at this point we don’t have any choice about how we move the case forward – that decision has already been made. Like I said, if you don’t respond, you will be in default. Since he already filed, there are no other options – you must respond.

It’s important to read the documents you were served with carefully. Is a court date attached? In some cases, the opposing attorney will also schedule a pendente lite hearing at the same time and notify you of both – the pending divorce, and the court date. You’ll want to also make sure you have representation for the hearing. Pendente lite (LINK) is an important hearing, because it’s an opportunity to have things like temporary custody, child support, and spousal support established.

If you’re not sure, talk to an attorney and have them review your documents for you. At the very least, they can help get you prepared for how to respond, even if you have to do it on your own. You essentially have to go through the list of allegations your husband made and admit, deny, or plead the 5th with respect to each one. Then, you have an opportunity to counter, and issue your own set of allegations, complete with all the details you think necessary to include.

What happens after the complaint and then my answer are filed?

A good question! Often, after these documents are filed, we have the pendente lite hearing – but not always.

Sometimes, we go straight to formal discovery – the legal process through which we determine what the assets and liabilities are.

In other cases, they sit for a bit, or we start to negotiate a separation agreement. It really depends on how motivated the opposing party is to moving this thing forward. In this case? I’m not sure. I don’t know what the goals are here, and it’s too soon for me to have a feel for the husband and the choices he’s making.

The woman here wasn’t served with notice of a pendente lite hearing, so I recommended to her that she retain an attorney to file a response and then wait and see. In the meantime, since she was planning to move with him to his new station, she could have a chance to talk to him and see what the issues are. She believed that he didn’t really want a divorce, and that they could use marriage counseling to overcome whatever issues he believed existed. Hey, I’ve seen it happen!

If we agree not to get a divorce, can I just not respond to his complaint?

I wouldn’t recommend that. Unless you see proof that he has nonsuited the case (basically, an order entered by the judge showing that he has purged the case from the court’s docket), I wouldn’t trust his word. I wouldn’t want to risk being found in default.

Unless you see that endorsed, entered nonsuit order, you need to respond. And you need to do so within 21 days.

Once you’ve responded, you and your attorney are in the case and are entitled to notice of any proceedings. Nothing sneaky can move forward without you knowing about it. He could still dismiss the case, but then an order would have to go through you and your attorney.

I don’t mean to scare you; people reconcile all the time, even after filing for divorce. Seriously, all the time! Even sometimes in the most shocking cases where you think that these people will never see eye to eye on anything ever again. It happens, and nothing like that would ever shock me. If you guys are destined to reconcile, that’s great.

But I would also caution you that, if he’s determined to get a divorce, it’s better to get with the program than to fight it. You can’t keep him from getting a divorce. You could throw tens of thousands of dollars at the thing to drag it out and make it take a lot longer, but that doesn’t mean you can stop the divorce. You can’t. And it’s probably not a good idea to try, because it’ll just cost you precious dollars that you’ll need post divorce. Of course, it’s always smart to talk to a divorce attorney in the state where your husband filed to ensure that there are no other loopholes or things you should be aware of, but you should be prepared for the likelihood that there’s not a whole lot you can do about the whole divorce thing.

It’s better to participate in the process and try to walk away with a reasonable settlement than it is to fight, drag it out, and end up with less left over to start over again after the divorce is ultimately entered. It doesn’t take two to want a divorce, after all. One can do it.

For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.