Can Both Spouses File for Divorce?

By Beverly Bird

Some lawyers will tell you that there's no legal advantage in being the first spouse to file for divorce, although depending on the details of your particular case, it may give you a strategic edge. However, if your spouse beats you to the courthouse, all isn't lost. You can file a counterclaim of your own, which is essentially a complaint in response to your spouse's filing.

Filing a Counterclaim

If your spouse has already filed for divorce, you can't file a petition or complaint of your own. Instead, you must file a counterclaim, but this in essence acts as your own complaint. It bears the same case number as your spouse's filing, but it's a legal action in itself. If she decides she doesn't want the divorce and tries to dismiss the case, she can't – she can only dismiss her own pleadings, and your counterclaim will move ahead uncontested.

When There Are Two Petitions

If you try to file a divorce complaint -- rather than a counterclaim -- in the same county where your spouse has already done so, the court probably will not accept the second document. You might be able to file in a different county, but the court must usually dismiss your action when it learns of the other filing.

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Joint Petitions

In some states, you and your spouse can file for divorce together, submitting a joint petition or complaint. This usually requires that your divorce be uncontested, and you may have to submit a signed marital settlement agreement to the court at the same time.

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What Is a Counterclaim for Divorce?
 

References

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How to File a No Fault Divorce Without a Lawyer

A no-fault divorce simply means that you are not accusing your spouse of doing anything wrong to end your marriage. It’s not the same as an uncontested divorce, in which your spouse offers no legal opposition to the proceedings. With a no-fault divorce, you’re simply giving him less to contest. He cannot argue your grounds, or the fact that you believe your marriage is over. He can only object to the way in which you've asked the court to end the marriage, such as how you'd like your property divided between the two of you.

Can the Opposing Party File for Decree of Divorce?

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.

How to File a Trial Brief for Divorce

Filing a divorce trial brief is different in different states and different counties within each state. This is because different courts have different rules about what must be in the trial brief. The state itself might have specific rules and local courts can expand upon those rules. In general, the trial brief is the documentation you file with the court to notify the court and other party of the relevant information you will bring forth at the divorce trial.

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