What Is a Counterclaim for Divorce?
One spouse, often called the petitioner or plaintiff, must file a petition or complaint to start a divorce case. The other spouse, known as the respondent or defendant, files an answer. The responding spouse may also include a counterclaim with the answer.
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Function
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The responding spouse uses a counterclaim to provide the family law court with his own version of the facts and raise legal issues not already included in the divorce petition. The counterclaim can also include the responding party's own request for a divorce and state his own grounds to obtain the divorce. The counterclaim may be optional depending on each couple's circumstances.
Distinction
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In contrast to a counterclaim, the answer only discusses legal issues raised by the initial divorce petition, states whether the responding party agrees or disagrees with each statement by the petitioner and argues for affirmative defenses. Even though the responding spouse might file the answer and counterclaim together, the counterclaim is often set apart as a separate section or an entirely new state court form, depending on the relevant state's laws.
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Warning
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The non-petitioning spouse must file her answer and counterclaim within a certain number of days, as set by her state's divorce laws. Each state's rules of civil procedure determine the requirements for writing, formatting and filing a counterclaim. Failure to file an answer or counterclaim properly with the court may result in a default judgment based on the other party's requests.
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