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What is a Counter-Petition and Why Should I File One?

Posted by Gina Colaluca | Jul 17, 2017 | 0 Comments

When you are served with a Petition for Dissolution of Marriage, the Petition should come with a Summons indicating you must appear in the case and write a written response to the Petition for Dissolution of Marriage. However, did you also know that you have a right to file your own Petition for Dissolution of Marriage against your spouse even though you've already been served with your spouse's Petition for Dissolution of Marriage? In other words, you have a right to sue your spouse back even though they have already sued you first. When a party files their own Petition for Dissolution of Marriage after they have already been served with a Petition for Dissolution of Marriage from their spouse, the second Petition for Dissolution of Marriage is called a Counter-Petition for Dissolution of Marriage.

A Counter-Petition for Dissolution of Marriage is a legal complaint just like any other Petition for Dissolution of Marriage. As a result, you will incur an additional filing fee if you file a Counter-Petition for Dissolution of Marriage. The Counter-Petition for Dissolution of Marriage basically indicates that the person who was originally served with a Petition for Dissolution of Marriage also wants the divorce. In fact, the Petition for Dissolution of Marriage and the Counter-Petition for Dissolution of Marriage will look very similar, and may even allege the same facts or request the same outcome of the case on division of property, parenting time, and other issues. If that is the case, then why would a responding party pay extra money to file a Counter-Petition for Dissolution of Marriage that says the same thing as their spouse's Petition for Dissolution of Marriage? The answer is: filing a Counter-Petition for Dissolution of Marriage protects you from having your case dismissed even when you still want to get a divorce.

When a party files a Petition for Dissolution of Marriage, they are asking the court to open their case and grant their divorce. However, the party who files the Petition for Dissolution of Marriage has the right to withdraw or dismiss their Petition for Dissolution of Marriage at any time for any reason. This is called “voluntary dismissal.” If your spouse's Petition is the only Petition before the Court and they choose to voluntarily dismiss their Petition, then the entire case would be dismissed along with their Petition even if you still want the divorce. However, if you had filed a Counter-Petition for Dissolution of Marriage, the Court could still move forward on your Counter-Petition for Dissolution of Marriage even if your spouse decides to dismiss their Petition for Dissolution of Marriage. As a result, as long as you file a Counter-Petition, your case will not be dismissed even if your spouse decides he or she wants to dismiss your case.

For example, say your spouse initially filed a Petition for Dissolution of Marriage against you requesting a divorce. You appeared in the case, answered the Petition, and motioned the court for maintenance, but did not file a Counter-Petition for Dissolution of Marriage. The Court grants your motion for maintenance. If your spouse does not want to pay you the maintenance, your spouse could simply dismiss his or her Petition for Dissolution of Marriage, resulting in a dismissal of the entire case. However, had you filed a Counter-Petition for Dissolution of Marriage, your spouse would not be able to dismiss your entire case in order to skirt his or her maintenance obligation.  Rather, he or she could dismiss his or her Petition for Dissolution of Marriage, but the case would continue on your Counter-Petition for Dissolution of Marriage.

I always strongly suggest my clients file a Counter-Petition for Dissolution of Marriage if their spouse is the party who initiated the divorce proceedings. Although you have to incur an extra filing fee to file a Counter-Petition for Dissolution of Marriage, in my opinion, it is worth it and could save you a lot of money and grief later on. If your spouse were to ever decide to dismiss his or her Petition for Dissolution of Marriage and you have no Counter-Petition on file, your entire case will be dismissed regardless of how much progress you have made in the case. If the case is dismissed and you still want the divorce, you have to start over from scratch and file your own Petition for Dissolution of Marriage, at which time you will have to pay a filing fee anyways. For instance, I once had a client whose case was dismissed the day of trial, simply because he chose not to file a Counter-Petition for Dissolution of Marriage at the beginning of the case to avoid the filing fee. This client had to re-file the case and start all over, even though he had previously litigated the case for nearly two years. It is important to note that there are certain rules and restrictions in filing a Counter-Petition for Dissolution of Marriage. If you have missed the deadline to file, you will have to ask the court for permission to file a Counter-Petition for Dissolution of Marriage. As a result, it is always wise to seek the advice of an attorney in properly drafting and filing a Counter-Petition for Dissolution of Marriage. If you have been served with a divorce and would like to ensure you file a Counter-Petition, feel free to contact our office for your free consultation today.

About the Author

Gina Colaluca

Gina L. Colaluca began working as an Associate Attorney at the Law Offices of Laura A. Holwell in 2013, where she focused her practice mainly in Family Law. She now continues to focus on Family Law, as well as Insurance Law and Appellate Law, here at Holwell Law Group, LLC.

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