I talked about what happens when someone files a Complaint and the significance of that in the blog “Anatomy of a Divorce Series: Filing A Complaint.” Now I am going to explain what happens after the Complaint has been filed.
Many attorneys have a formula they follow on every divorce case, which starts with filing a Complaint. However, there are times when it’s not prudent to file a Complaint right away because it sets in motion a series of events and essentially requires you to spend more on your attorney. So if you don’t really need to file a Complaint right away, you shouldn’t. I talked about reasons why you shouldn’t in the blogAnatomy of a Divorce Series: Getting Started Part I and when it might be really important for you to file a Complaint right away in Anatomy of a Divorce Series: Part II.
Here are the more immediate events that happen when someone files a Complaint (that person is known as the Plaintiff):
- Serving the Complaint. The Plaintiff is required to serve the Defendant (the other party, in this case, your spouse if it’s a divorce). You are also required to submit proof to the court that you did, in fact, serve him/her. You cannot just hand it to your spouse at the dinner table. That’s not enough. There are two ways to do this:
- Method #1: Acknowledgment of Service: If your spouse is cooperating and has an attorney, the Defendant’s attorney can simply acknowledge that he/she was served and sign a document called an Acknowledgment of Service. That document then gets filed with the court as your “proof” that your spouse was served.
- Method #2: Affidavit of Service: If he/she’s not cooperating, then you have to hire a process server (there are businesses that do this for a fee) to serve your spouse. Once that is accomplished, the process server will usually provide an Affidavit swearing under oath that they did, in fact, serve your spouse. Then your attorney will file that Affidavit (normally referred to as an Affidavit of Service) with the court as the “proof” that your spouse was served.
- Responding to the Complaint: Once the Defendant gets served, he/she has to do something with it. If they don’t, then your matter become a Default, which I have discussed in another blog you can find here. They can file an Answer, which is simply responding to the allegations in your Complaint. It’s just a formality, but it has to be done to avoid a Default. Or they can file an Answer & Counterclaim, which means that they are effectively filing their own Complaint too. There are strategic reasons for doing that (or not doing that), which are too complicated to get into here. They can also simply file an Acknowledgment or Notice of Appearance, which really just means, “I acknowledge the proceeding and I am participating.” (Most attorneys will file an Answer & Counterclaim). They can also do nothing, which then means the matter will ultimately be converted to a Default.
- After Defendant Responds to the Complaint. Note that if the Defendant files a Counterclaim, the Plaintiff is also required to file a response to that. Again, it’s just a formality but it should be done or there can be adverse consequences. This is where the tennis game ends, and you move on to the real litigation.
As you can see, there is no reason to go into full-on panic mode if you get served with a Complaint. However, you do have to act promptly since there are deadlines that have to be met to avoid adverse consequences. For that reason, you should contact an attorney right away if you have been served with a Complaint.
If you have been served with a Complaint, or you need help with a divorce matter, please contact us to schedule your Client Vision Meeting by calling 732-529-6937. Or you can schedule it right here.