Responding to the Divorce Petition and Navigating Key Decisions
The response to the divorce petition is the procedural act carried out by the defendant spouse to oppose the claims of the plaintiff spouse .
Therefore, the spouse filing the lawsuit is called the plaintiff and the other spouse is called the defendant .
The purpose of the response to the divorce petition is for the ruling issued by the Judge to uphold the defendant’s claims, rejecting those of the plaintiff .
Is it necessary to respond to all divorce petitions?
To answer this question, we begin by explaining the two types of divorce petition and in which of them a response to the petition is required.
Divorce by mutual agreement
This form of divorce is the most advisable , both for family, economic and time reasons.
If the spouses reach an agreement on the criteria that will govern the marriage, after the divorce, the divorce procedure will be amicable.
In that case, the spouses may file a divorce petition by mutual agreement jointly , or file it one with the consent of the other .
The lawsuit will be accompanied by the regulatory agreement in which the spouses agree on the effects of the divorce.
If there is an agreement, in the judicial divorce procedure by mutual agreement there will be no process of answering the divorce petition .
If it is not possible to adopt this agreement, the remaining option is to file for contentious divorce . Each of the spouses will go through the divorce procedure separately .
Once the divorce petition has been filed, the defendant spouse will proceed to respond to the petition. Therefore, in divorce matters, there will be a response process to the contentious divorce petition.
Keys to answering the divorce petition
These are the 11 keys or recommendations that must be followed for a good response to the divorce petition:
- Read the claim carefully and assess the issues with which you are not satisfied.
- Compile all allegations and evidence that may refute the claims of the plaintiff spouse.
- Insist on an amicable agreement with the plaintiff spouse that will benefit both and will also benefit the children , if there are any.
- If you cannot reach an agreement, look for a good divorce lawyer and also contact a solicitor.
- The intervention of these professionals in contentious divorce processes is mandatory .
- If you do not have the resources to hire a lawyer and attorney, you can request a public defender .
- Arrange a meeting with the lawyer and bring the divorce petition and all accompanying documents.
- Explain to the lawyer, clearly, what your situation is and what your claims are.
- Provide all documentation with which to refute the allegations and claims of the plaintiff spouse.
- Ask the lawyer everything that is not clearly understood. The lawyer works for you and should help you understand the extremes of divorce.
- Let yourself be advised by your lawyer.
Deadline for answering the contentious divorce petition
- Once the petition for divorce has been filed by the plaintiff spouse, the Judge will decide whether to admit the petition for processing .
- Once admitted for processing, the claim will be sent to the defendant spouse along with the accompanying documents.
- The defendant spouse will have a period of 20 business days to file a response to the complaint. This period will be counted from the day following the day of notification of the demand . We say that it is a period of 20 business days, so Saturdays, Sundays and holidays will be discounted.
- If there are minor or incapacitated children, the claim will also be transferred to the Public Prosecutor’s Office .
Options for the defendant spouse in a contentious divorce lawsuit
The 4 options that the defendant spouse has when faced with a contentious divorce claim are the following:
1. Not responding to the complaint, nor appearing in the process (rebellion)
One of the possibilities is not to respond to the complaint and not appear in the procedure. In this case, the declaration of default will take place .
In matrimonial proceedings, the failure of the defendant spouse to appear without just cause implies that he or she admits the facts alleged in the document of claim.
Therefore, this option is never recommended since it will imply the automatic acceptance of all the demands of the other spouse.
2. Appear in the process and do not answer
The defendant spouse may decide to appear in the process, but does not respond to the statement of claim.
It is advisable, at least, to appear in the contentious divorce process. Appearance in the procedure requires a lawyer and attorney .
The purpose of the appearance, even if the claim is not answered, is to know the measures that the Judge is going to establish regarding the assets, the children, the use of the family home , etc.
3. Give in to the demand
This means that the defendant spouse admits the claims of the plaintiff spouse.
The raid can be:
- Total acquiescence , if the defendant accepts all the plaintiff’s claims. The defendant will have to appear, with a lawyer and attorney, and present a search warrant.
- Partial acquiescence , if the defendant agrees with some claims but opposes the rest. The defendant will have to appear with a lawyer and attorney. He must submit a document partially agreeing to some claims and answer and oppose others. For example, you can intervene regarding the visitation regime for children and oppose measures on alimony .
4. Respond to the demand
The defendant spouse appears in the procedure and answers the statement of claim.
In answering the complaint to oppose, the defendant has the following options :
- The normal thing is to oppose all the claims of the plaintiff .
- You may also express in your response your agreement to one or some of the claims of the plaintiff spouse and oppose the rest (partial agreement).
- You can object to the legal basis (legal elements of the claim) and accept the factual facts. In this case, it will not be necessary to perform any test.
- Allege procedural exceptions and other allegations that make it difficult to terminate the process through a ruling on the merits.
- Reprimand. The defendant spouse, upon answering the complaint, may file a counterclaim against the plaintiff spouse. That is, he does not limit himself to opposing the plaintiff’s claims, but also requests his own claims. In order for there to be a counterclaim, the following are required:
- That the measures requested in the counterclaim have not been requested in the lawsuit. For example, the defendant spouse may request a compensatory pension in his favor.
- That the Judge has no obligation to rule on them ex officio. For example, there may be no counterclaim regarding measures that affect minor children. In the event of a counterclaim, the counterclaimed spouse will have a period of 10 days to respond.
Can the contentious divorce procedure become a mutual agreement procedure?
Yes. At any time, the spouses may request the Judge to continue the process through the procedures of the mutual agreement procedure.
To do this, it will be mandatory to provide a proposal for a regulatory agreement .
Likewise, the parties by mutual agreement may request the suspension of the process to undergo mediation .
Get advice from a specialist family lawyer
The application and response to the divorce application are two key procedures in the divorce process and with important consequences for the future.
It is always advisable to have the advice of a lawyer truly specialized in family law and divorce . Otherwise, mistakes may be made in the process or harmful decisions may be made that could be detrimental to the future.