Can the Opposing Party File for Decree of Divorce?

By Jennifer Williams

An opposing party in a divorce case is called the respondent, because he responds to the initial petition that begins the divorce process. Some states require a complaint for divorce rather than a petition. In that case, the opposing party is called the defendant. The respondent, or defendant, can file for his own divorce decree by filing a cross-petition for divorce, also sometimes called a counterclaim. When a respondent files his own cross-petition he might have to pay a filing fee, but initiating his own divorce case allows him to present his side of the story in greater detail than is allowed by simply responding to his spouse's paperwork.

Starting the Process

The divorce process begins when one spouse asks the appropriate court, in the county with jurisdiction, for a divorce by filing a document called a petition or complaint. In addition to basic personal information about the filing spouse, children and property of the marriage, the petition includes the reasons for the divorce and what the filing spouse wants during the litigation process and in the final decree of divorce. The petition is filed with a corresponding filing fee and usually delivered in person by a professional process server to the other spouse. The other spouse then has a certain number of days to respond.

Response Options

The other spouse can respond to the initial petition for divorce by filing an appearance, an answer, or a cross-petition. An appearance simply acknowledges the petition and confirms participation in the case. An answer is much more detailed, addressing each paragraph of the petition and either agreeing or disagreeing with its statements and allegations. A cross-petition, or counterclaim, might require payment of the same filing fee paid by the petitioning spouse, but it allows the opposing spouse to make statements and allegations of his own, and ask the court for what he wants both during the litigation process and in the final decree.

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Cross-Petition Advantages

When a respondent files a cross-petition for divorce, he initiates his own divorce case. At first it may seem unnecessary to initiate a separate divorce case when all the work and expense have already been dealt with by the petitioning spouse. However, a cross-petition allows the respondent to present any grounds for divorce he may have and present the court with requests for interim and final relief not presented to the court in the original petition. If the respondent only files an answer, he is primarily agreeing or disagreeing with the statements and allegations made in the petition. Often, however, an answer and a cross-petition can be combined into one document, allowing the respondent to address everything included in the petition and then present his own statements and allegations.

Failure to File

If the respondent chooses not to file a cross-petition, he forfeits his opportunity to present his own legal grounds for the divorce. He may also forfeit his opportunity to ask for temporary support for himself during the divorce litigation or for property and money he wants awarded to him in the final decree. A cross-petition also keeps the respondent's request for divorce open and active before the court should the petitioning spouse withdraw or voluntarily dismiss her petition. If the petitioning spouse changes her mind about the divorce and drops her petition, and there is no cross-petition on file with the court, the divorce action simply goes away.

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Divorce Sequence of Events

References

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