Marriage is a legal status regulated by the state. To end a marriage one of the parties has to file a lawsuit seeking a divorce. This chapter addresses questions regarding the documents filed in a divorce lawsuit. Lawyers refer to these documents as pleadings.16.1 What Is a Complaint for Divorce ?
A complaint for divorce is the first pleading or court paper filed with a circuit court that initiates the divorce case.16.2 What Is Contained in a Complaint?
A complaint contains allegations and a request for relief. The allegations include the parties’ names, the date and place of the marriage, information regarding any children, information regarding the separation, and other required information.
The request for relief identifies for the judge and the other party what you are seeking in the divorce case. Requested relief includes a divorce, and may include in addition a request for the following:
- the assets and debts be divided (equitable distribution)
- spousal support be awarded
- custody and visitation be determined
- child support be set, and that attorney’s fees be awarded
This is a typical, but not exclusive, list.16.3 Do I Have to File a Complaint?
Either you or your spouse has to file a complaint for divorce if you want to get divorced. There is no alternative.16.4 I am Anxious to Get Divorced. How Soon Can I File a Complaint?
You may file as soon as you have an available ground for divorce. ( See chapter 7 for details regarding the grounds of divorce.)16.5 I Came Home From Work and There Was a Complaint and Other Paperwork in a Plastic Bag Hanging on My Door- Knob. What Do I Have to Do?
You have been served with the initial divorce paperwork. You should immediately hire an attorney as you are required to file your answer within twenty-one days.16.6 I Want to File a Complaint, but I Do Not Want the Sheriff Delivering the Paperwork to My Spouse While She Has the Children. What Are My Options?
Your attorney can help you explore the options, which include having your spouse sign an acceptance of service form, having her attorney voluntarily file an answer, or having your spouse served while the children are with you.16.7 What Is an Answer and When Does It Have to Be Filed?
An answer is your written response to your spouse’s complaint. Your answer has to be filed in the clerk’s office of the circuit court within twenty-one days of the service of the complaint on you.16.8 What Is a Counterclaim and Is It Required?
If your spouse files a complaint, then you will have to file an answer. If you also wish to request relief from the judge (including a divorce, equitable distribution, spousal support, custody and visitation, child support, and attorney’s fees), then you should file a counterclaim in addition to your answer. A counterclaim also protects you against a nonsuit. Discuss this with your attorney.16.9 What Are Motions?
A motion is a written request filed in your divorce case. There are many types of issues that can develop during a divorce case. For example, these issues may arise during the case but before trial:
- Who gets possession of the house?
- What is the visitation schedule?
- How much support should be paid?
- Who is responsible for what bills?
Disputes sometimes arise during discovery that result in motions being filed. There are many different motions that may be filed, including motions for attorney’s fees, motions to compel, and motions for divorce. Either side can file motions, which are requests to the judge to make rulings resolving specific issues in dispute. Motions are typically, but not always, considered and ruled on by the judge prior to trial.16.10 What Are Petitions?
A petition is a request for relief filed with the court, similar to a complaint or a motion.16.11 What Are Orders?
An order is a document signed by the judge reflecting one or more rulings made by the judge. The parties are legally obligated to comply with all orders entered in their case.16.12 What Are the Most Common Orders in a Divorce Case?
The most common order in a divorce case is a divorce order (an order granting divorce). The divorce order may address all of the issues, including equitable distribution, spousal sup- port, custody and visitation, child support, and attorney’s fees. Alternatively, some of these issues can be addressed in separate orders. There is usually an order entered for each hearing and following the trial, if there is a trial. If you settle all of your issues, the settlement agreement is usually incorporated in the divorce order (your agreement becomes part of the order. Other common orders include scheduling orders (setting dates and deadlines for your preparations for trial), and pendente lite orders which govern temporary issues such as possession of the home, custody, visitation, and support until trial.16.13 Is a Divorce Order Necessary Even if We Have a Settlement Agreement?
Yes, the divorce occurs when the divorce order is signed by the judge.