Divorce: Responding To A Divorce Your Spouse Filed

View the Divorce Tookit for more information about divorce. 

What do I do if I get served with divorce papers?

When you receive the divorce papers, your spouse is asking for a divorce. You need to respond to the divorce petition. You will be called the "Respodent" in the case. You can also file a "counterclaim" along with your answer. A counterclaim is your request for a divorce, on whatever grounds you feel are appropriate. You can make your own requests for relief in your counterclaim.

In the paperwork you receive, the summons will tell you how many protected days you have (usually 20) to respond to the petition with an “answer.” This is the time you have to decide what you want to do, perhaps talk to a lawyer, and file paperwork with the court. This is your protected "answer period." You can file an Answer at any time. If you do not file any Answer, the court still must wait for that protected period to run out before taking any decisions in your case.

Once the answer period runs out, though, the court can act even if you have not filed any response or answer or motion or request. If you do not file an answer or response the court may not even notify you about when a hearing is scheduled, especially if the court does not have your correct address. Once you have been served, and your protected answer period has run out, then the court is free to move forward with or without you.

If the court has not acted in your case, though, you can still submit an answer any time before your first hearing. You take a risk if you don't file an answer in the protected answer period, because the court might act without telling you. But if the court hasn't already taken some decision based on your failure to file an answer, then you can file a late answer. The judge may tell you that you can fill out an answer at the hearing if you haven’t submitted one already.

If you want to be sure that you are notified about all proceedings in the case you have to file an Answer. You should file your answer by the end of the protected answer period. If you don't file an Answer, you might not be notified of future hearings. And if you don’t know about the hearing, you probably won’t be present to give your side of the case.

How do I file an answer if I’m served with divorce papers?

You can find an answer form on the West Virginia Supreme Court of Appeals website here.  You should fill out the forms for the Respondent. You can also get an Answer form in the circuit clerk’s office.

The answer states whether you agree to the divorce. The answer also lets you state what you want in the divorce. Along with your answer you should file a Financial Statement. If you and your spouse have children, you should also file your proposed Parenting Plan. All of these documents are available through the Legal Aid website, through the Supreme Court website, and from the clerk's office where the divorce was filed. There are instructions available for many of these forms.

What will happen in the divorce if I don’t answer the divorce petition?

First of all, you might never be notified of the court hearing. If you have been served, but don't answer, the court might think you don't want to participate in the case. Don't take that chance. File an answer just to guarantee that you are notified of the hearing.

But if you do know about the hearing and attend, the judge probably will give you a paper that you can sign as an answer. You might have about 30 seconds to do this at the hearing. You answer the divorce petition to let the court know your position in the divorce case. You answer the divorce petition to tell the judge what you want in the divorce. You could lose a lot of your rights by not writing an answer ahead of time when you've had time to think about it.

If you don't file an answer, your spouse cannot get a divorce on the ground of irreconcilable differences (a no-fault divorce). To grant a divorce on that basis, both spouses must state in writing that you agree to the ground of irreconcilable differences. Both the husband and wife must sign notarized documents for this purpose. These documents must be put on file in the circuit clerk’s office. Those documents must state that irreconcilable differences exist.

However, your spouse may still be able to get a divorce if they can prove a fault ground for divorce. If you don’t answer the divorce petition and you don’t go to a hearing, it's still possible that the judge can grant the divorce.

If that happens, the judge also can make other decisions in the divorce. If there was personal service on you, the court can address any issue your spouse wants to present. If there was more limited service of process, the court still may be able to address some issues.

In short, if you don't file an answer you're taking a big chance. You may not know when or whether the court is holding hearings in your case. You may never be given the chance to tell your side of the case. The court may issue orders against you that you could have defeated if you had been present. You won't be able to get those orders changed later, if you didn't file an answer and didn't protect your right to be notified of hearings. Finally, at the least, you may cause the divorce to take a lot more time than you want if you do not answer and go to a hearing.

What happens after my spouse is served with the divorce petition?

Your spouse will get a notice with the divorce. The notice is called a "summons." The summons tells him or her to file an answer to the divorce.

Your spouse will have a protected answer period, to give them time to decide how they want to respond. The period is 20 days if you obtain "personal service" on them. Otherwise the protected period will be 30 days. During that protected period you and the Court must wait for your spouse.

After that protected period is over you and the Court can move ahead with your case even if your spouse has not filed any response. Once the protected period is expired you don't need to wait for your spouse to do something. You can ask the court to schedule a hearing and keep your case moving, even if your spouse does nothing.

Your spouse can file an Answer at any time, even if it's after the protected answer period. The risk in filing a late answer is that the Court may have already acted without knowing what your spouse wanted. That's your spouse's problem, not your problem.

View the Divorce Tookit for more information about divorce. 

This is general legal information. For guidance about your situation, talk to a lawyer.