FILING RESPONSIVE PLEADINGS IN YOUR DIVORCE CASE
Responsive Pleadings: Following the filing of a Petition for divorce and service of the same on the other spouse, responsive pleadings should be filed in the form of an Answer and Counter Petition. The responding spouse can include responses to the allegations of the Petition, counterclaims against the spouse, and affirmative defenses if the divorce is fault-based. Just as with the Petition, the pleading is filed with the court and served upon the spouse (generally by sending it to the attorney for that spouse). Together, the Petition and responsive pleading will set up the parameters of the divorce by outlining points of contention and disagreements that the court will need to resolve.
Timing: After the non-filing spouse has been served with the Petition, summons, and any ex parte orders, the clock begins running on their time to respond. The default time limit is very short: 21 days from receiving service. This time limit can be extended with permission of the court, and that permission is often granted. If the non-filing spouse has not secured legal counsel, receiving service will generally spur them into doing so. It is possible for the spouse to proceed pro se, without an attorney. However, the nature of the documents that are served upon the spouse will likely convince him or her that the process will be too much to handle alone. After the non-filing spouse secures an attorney, the proceedings really begin to progress through the court.
Answer: An Answer is simply a direct response to the Petition filed to begin the case. The Answer mirrors the format of the Petition, addressing each numbered paragraph of the Petition with a corresponding numbered paragraph that responds to it. The spouse is limited to three choices: admit the allegation, deny the allegation, or state that they simply don’t know. If a spouse admits an allegation as true, that issue cannot be later contested; it basically falls out of the proceeding because it is accepted as true. Thus, most allegations will be met with denials at the early stage of the divorce.
If the divorce is fault-based, the Answer will likely also include defenses. Such a defense is acquiescence, meaning that the filing spouse was agreeable to what is being claimed as misconduct. However, what is not a defense is “mutuality of fault.” The court ruled in Cohee v. Cohee that one’s parties fault should not be raised as a defense to the other party’s fault. To allow this would be to require the court to decide which spouse’s actions were worse—a game that has no winner. Instead, fault on behalf of the other spouse should be addressed independently in a Counter Petition.
Counter Petition: In the context of divorce, counterclaims contained in Counter Petitions generally serve non-legal purposes. The only “relief” that a counterclaim seeks is the exact same as the relief sought by the Petition: dissolving the marriage. Rather, counterclaims may be made to fulfill personal reasons or to argue that the divorce should be fault-based in favor of the spouse filing the Counter Petition. As discussed above, mutual fault is the most common counterclaim.
In some instances, a spouse may have another claim against his or her spouse, such as battery (physical abuse) or false imprisonment. K.S.A. Section 23-2718 generally does not permit these types of counterclaims to be joined in the action for divorce. Instead, the spouse should file a separate lawsuit to address that wrong and leave the divorce proceeding to handle the issues dealing with separating the couple. However, if both parties agree and the court approves, these counterclaims may be wrapped up into the divorce proceeding and heard all at once. The usefulness of this method of resolving claims should be addressed on a case-by-case basis, because many factors can weigh in the benefits and shortcomings of an all-in trial.
Required Parenting Classes: Many district courts have issued a local rule requiring all divorcing couples with minor children attend classes within a certain time frame. For example, in Johnson County, these classes must be completed within 90 days of filing the Petition. The most predominant of these classes is known as Parents Forever. The classes are aimed at ensuring that the parents are aware of struggles and difficulties that are likely to arise during a divorce. This includes troubles that occur during divorce and during the years afterwards. These classes focus on three main issues. First, the legal and economic issues caused by divorce and felt by children. Second, the impact of divorce on children. Third, the impact of divorce on parents and ways to continue successful parenting following separation.
Parents Forever classes are not couples therapy. Parents are not allowed to attend classes together, even though the classes are offered in group settings. Instead, each parent must separately attend class. The parents are also permitted to attend virtual classes online. A second important difference is the goal of Parents Forever—coping with divorce, not preventing it. The focus will continuously be on successfully raising children despite the divorce.