Divorce complaint mistakes


#1

I recieved a complaint for absolute divorce and custody today from my ex’s lawyer, and there are many mistakes. First the simple one’s, our date of marriage and seperation are both wrong. Now the main issue is the custody. We have had a custody agreement filed with the court since shortly after our seperation giving me primary residential custody of our two children and her visitation rights. Recently I made my own custody agreement giving us equal time with the children and suspending child support, but it was not filed with the courts. The divorce complaint states that the children have “resided primarily with the Plantiff from that date until the present” meaning seperation date which is untrue. And the papers also ask for her to be given primary custody and for me to pay child support and cover medical. I told her that we could have our newer agreement added in with the divorce so that it would be filed and official, but this is not even close to what we agreed upon. I am hoping this is unintentional mistakes on her part and she didn’t read or understand the complaint, but I haven’t been able to talk to her yet. I read elsewhere on the site about filing an answer and counter-complaint but I’m not sure how to do that or if I should. I told her after we split and I paid for the first custody agreement that she would have to take care of the divorce, but I should of just done it myself. I really don’t have the money or time to meet with a lawyer right now and I’m hoping you can help me take care of this myself. Thanks.


#2

You do need to respond to the Complaint by answering each of the allegations contained therein by admitting or denying them. Anything that is a mistake in her Complaint, you should deny in your Answer and put the correct date in your Counterclaim.

It appears that you two already have a custody agreement in place, then that will be your custody arrangement moving forward. However, unlike with property and alimony matters, you cannot permanently contract on the issues of custody and child support. So, you can always later file for custody if you choose to do so. It appears that your ex is now filing for custody, which is within her rights as you cannot permanent contract on such a right. But to successfully file to modify custody, she will need to prove to the court that the circumstances have changed in such a way that affect the children’s best interest.

Some counties have self-serve clinics which offer sample Answers, Complaints and Counterclaims. I suggest you contact your county courthouse to see if such a clinic is available in your county. You may also want to check out our DIY service which includes an extensive library with sample complaints and other necessary forms. By the way, if your agreement was notarized and signed, it’s a contract. If she’s violating anything therein, she’s in breach. I would then recommend immediately filing for breach.


#3

Thanks for your response. Apparently she didn’t think our original agreement was official and thought no one had custody. She asked me to get her a copy of it to give to her lawyer, but I told her it’s probably too late now unless they get it dismissed and start over. I would think her lawyer would advise against going for custody if he knew that I already had it. I have been researching to learn more about my Answer, but have not found much about how to write it or a counter-claim. I’m in Transylvania county and there’s not much here for resources, but I will call monday to see if I can find out anything. I know the answer is supposed to follow the format of the complaint, would I just copy the format exactly and put admitted or denied in place of each paragraph? Do I need explanations? Is the counter claim the same as the divorce complaint just with my terms? I know I’ll be the defendant throughout. Thanks for any help and hopefully I will find some help from the county too.


#4

I think I have my answer figured out now. There are a few things I’m not sure of. First of a few of the examples I have found have the answer and counterclaim combined in one document. Is this how I should do mine as well? Or should they be seperate and basically identical except that the answer simply admits or denies, and the counter claim will give the explanations, but in the same format. Second the divorce complaint has a heading near the bottom of the first page which says “Second claim for relief: child custody and support”. I plan on copying this, but some of the paragraphs I’m not sure how to answer, such as “The defendant is fit and suitable to have visitation with the minor children.” Which I guess I would admit, but I don’t want visitation when I’m supposed to have custody. I’m not sure at this point what I should do. If I get a loan to get an attorney could I go after her to pay for the fees without having to sue her in a seperate case? Sorry all this has me very confused, I wish I had money for an attorney.


#5

You don’t have to provide explanations for your answers. You can put as much or as little explanation as you want, but you need to answer “Admit” or “Deny” to every paragraph in the Complaint. You can present your evidence at the hearing. You can combine your Answer and Counterclaim in one document. That is typically how they are done. You can ask for attorneys’ fees if you are asking for support (meaning you’ve been the supported spouse). I cannot give you specific drafting advice regarding language as that is beyond the scope of this forum. Feel free to sign up for our DIY service, which costs just $199 per month.


#6

Hello again thanks for all your help. I think I’ve got my answer and counterclaim finished, I just had one question. In the complaint at the end it says “wherefore, the plantiff prays the court as follows:”, do I need to respond to this section the same as the others with an “admit” or “deny” response. I did already, but it didn’t seem like I should. Just wanted to check before I take it to the clerk. Thanks again for all your help. It is so great you help all the people asking questions here.


#7

No, you do not need to answer that part. Just the 20 or so claims the other party made.


#8

Hey sorry to be back again. Went to the clerk yesterday and found out that they recently changed the price for filing a counterclaim here in my county. It now costs $225, but filing an answer is free. I was hoping you could tell me if I just file the answer is that enough to contest the divorce without filing the counterclaim as well. My ex’s lawyer told her that I would have to file in order for them to do anything to change the original complaint, but he didn’t say what I had to file, and the lady at the clerks office didn’t really give me a straight answer. It would seem to me that just filing the answer ahould be enough, because it shows that I am in disagreement with her complaint. Then when we go to court I could give my reasons. Thanks again for all your help.


#9

You need to file and Answer which admits or denies each allegation in her Complaint, and include counterclaims for any of the following as they apply to your case: temporary and permanent custody, child support, post-separation support, alimony, attorney’s fees and equitable distribution. You are the Defendant in the action, and will refer to yourself as the Defendant even in the counterclaim. The answer and counterclaim, and all subsequent documents and pleadings related to the case will be file under the original file number. There is no fee to file an answer and counterclaim that I am aware of, though counties vary and have new rules all of the time. Since custody seems to be an issue in your case, you will need to file a counterclaim on the matter of custody at the very least. If you disagree with anything in her complaint on ED, alimony or support issues, you need to include those claims in your counterclaim as well.