Help! I was served with a divorce complaint and a notice of hearing!
I talk a lot about separation agreements – those legal contracts negotiated between husbands and wives that divide up the marital assets and liabilities between the parties so that they can get an uncontested divorce without even going to court.
But not every divorce follows this familiar path. Sometimes, for one reason or another, one party files first – and, in some of those cases, the complaint comes to the other (often unsuspecting) party with a notice of an already-scheduled hearing attached.
Let’s set the emotion aside (because I’m sure you’re shocked and terrified and unsure what to do next, and that’s all normal and understandable) and talk about what to do next. As a pretty anxious person myself, I think that the best solution is generally to come up with a plan for how to move forward. In the case of divorce, especially given the time frame involved, that’s probably especially important.
What? There’s a time frame? How long do I have to respond to a complaint for divorce?
If you’ve been served, you have 21 days from the date of that service to file your answer and counterclaim.
That’s from the date of SERVICE, not the date it was filed with the court. The top page of what you were served with should include the date that it was served, but if you don’t see there, you can always call the attorney who filed the complaint and ask. You may not be able to get the attorney on the phone, but a paralegal or even a secretary can often answer that question for you quickly and easily.
What if I’m late? Am I screwed?
It’s ideal not to be late, because, technically, after 21 days, opposing counsel can move the case forward without further notice to you. That means a hearing could be scheduled without your being any the wiser. That’s pretty scary territory to be in, so you want to be sure to respond.
If, though, you’re late – hey, it happens sometimes – it may still be okay. We can file a motion to have late pleadings allowed, and, usually, the judge will enter the order. We may have to appear in court to argue why we were late and should be granted an exception but usually the judge is more concerned with justice and fairness and your opportunity to present evidence than why you were late. So, so long as nothing has happened in the case, you’ll probably be able to get your answer in even if it’s late. I wouldn’t encourage you to let that justify your not taking this seriously until the last possible moment, though; it makes things more difficult, more time consuming, and more expensive – not to mention, it’s just plain risky!
I’m not saying “Oh, don’t worry about it,” but I am saying that if, for whatever reason, a complaint slips past you, even if you’re now beyond the deadline, it’s a good idea to get into an attorney as quickly as possible to take whatever steps you can to mitigate the damage.
Do I need an attorney?
Unfortunately, probably yes. While you may be able to negotiate your own separation agreement without the help of an attorney (though, to be sure, it’s risky then, too), it’s virtually impossible to navigate the complicated court system without an experienced attorney to guide you. The rules are too complicated, too fraught with deadlines, and too nuanced to be quickly and easily comprehensible to someone who hasn’t handled a divorce before. It’s not you; it’s just HARD!
How can the other attorney just schedule a hearing like that? What do I do about that?
It depends on the type of hearing that was scheduled. In a lot of cases, a pendente lite hearing is scheduled right off the bat. In fact, it’s pretty common.
A pendente lite (or PL) hearing is a temporary support hearing, designed to make sure that a lot of the pressing issues are decided, at least on a temporary basis, while the case plays out. At PL, we often have custody, child support, and spousal support determined. There can also be other issues, like exclusive possession of the home, and restraining orders (prohibiting, for example, excessive spending or selling, restricting a person’s ability to intimidate or harass or interfere with the other party, and so on).
Sometimes, too, an attorney will notice a hearing for entry of a final decree of divorce. Without a separation agreement, there’s really no point to have a hearing to enter a final decree of divorce; attorneys sometimes do this to intimidate the other party and to encourage them to find an attorney and move on the case more quickly than they would otherwise do.
Either way, it is pretty generally established that attorneys have to collaborate and confer on dates, so you may have a good argument for a continuance just based on the fact that the date was set for you without any consideration given to your schedule or that of your attorney.
It’s a good idea, still, to talk to someone as soon as possible, so that you have as many options available to you as possible. If you need a continuance, it’ll be received better if you take quick action than if you drag your feet and wait until the last minute before saying anything.
In almost every case, though, filing a notice for a hearing along with a complaint for divorce is an attempt to get your attention. Since you’re here, reading this article, I’d say: goal accomplished. Anyway, now’s definitely the time to act, so that you can help ensure that as many options are available to you as possible.
For more information, give our office a call or schedule an appointment by calling at 757-425-5200.