What to Do if You Are Named in a Divorce Petition

By Stephanie Reid

A third party or co-litigant named in a divorce petition should review the allegations and file a responsive pleading right away. If the third party does not respond to the allegations, the court could make a potentially damaging ruling in his absence. In general, if a person is named as a third-party in a divorce petition, his participation is considered absolutely necessary to resolve the dispute. Third parties are often named for purposes of dividing property or proving allegations of adultery within the marriage.

A third party or co-litigant named in a divorce petition should review the allegations and file a responsive pleading right away. If the third party does not respond to the allegations, the court could make a potentially damaging ruling in his absence. In general, if a person is named as a third-party in a divorce petition, his participation is considered absolutely necessary to resolve the dispute. Third parties are often named for purposes of dividing property or proving allegations of adultery within the marriage.

Reasons to Name a Third Party

As one court has held, a third party to a divorce is only appropriate when that person is "indispensible" to the outcome of the case. One reason why a third party is joined to a divorce is if that person is holding or hiding assets for one of the spouses in order to help that spouse avoid the division of that asset by the divorce court. If the spouse transfers ownership of personal or real property to a third person, the court must bring that person in to transfer title or otherwise place a judgment on the property for the benefit of the defrauded spouse. Another reason to add a third party is in a situation involving adultery. If one party is claiming adultery as the grounds for divorce, some courts will require the joining of the paramour to the case.

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Procedural Rights

When a third party is joined to a divorce case, that person has all the same procedural rights as the divorcing spouses. These include service of process and notice of upcoming hearings or depositions. In addition, a third party is entitled to file a responsive complaint admitting or denying any allegations set forth by the spouse's pleadings. If the third party has additional allegations against the spouses not mentioned in the original pleadings, those may be raised in a counterclaim. An example of a counterclaim raised by a third-party paramour might be defamation of character, which could be upheld if the adultery allegations are unfounded.

Third Party as Part of the Litigation

A third party to a divorce is required to participate in the proceedings for the duration of the litigation. He may be required to testify in depositions, raise defenses in hearings or submit evidence to support or refute allegations. The third party will be responsible for the expenses resulting from participation in the case and could ultimately wind up paying a judgement for damages, depending on the outcome of the case.

Possible Defenses

Third parties have an opportunity to present defenses against allegations raised in the divorce complaint. In a case involving allegations of fraud with regard to marital property, one defense is to prove that the property actually belongs to the third party and was not transferred as part of an attempt to avoid a division. In a case involving adultery, a party may opt to deny all allegations in a responsive pleading in an attempt to preserve his or her reputation, particularly if that party is married as well.

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References

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