FILING RESPONSIVE PLEADINGS IN YOUR DIVORCE CASE

Responsive Pleadings

Following the filing of a Petition for divorce and service of the same on the other spouse, responsive pleadings should be filed in the form of an Answer and Counter Petition. The responding spouse may include responses to the Petition's allegations, counterclaims against the spouse, and affirmative defenses if the divorce is fault-based. Just as with the Petition, the pleading is filed with the court and served on the spouse (generally by sending it to the spouse's attorney). Together, the Petition and the responsive pleading will set the parameters of the divorce by outlining the issues the court must resolve.

Timing

After the non-filing spouse has been served with the Petition, summons, and any ex parte orders, the clock begins running on their time to respond. The default time limit is very short: 21 days from the date of service. This time limit can be extended with the court's permission, which is often granted. If the non-filing spouse has not secured legal counsel, receiving service will generally spur them into doing so. The spouse can proceed pro se, without an attorney. However, the nature of the documents that are served upon the spouse will likely convince him or her that the process will be too much to handle alone. After the non-filing spouse secures an attorney, the proceedings really begin to progress through the court.

Answer

An Answer is simply a direct response to the Petition filed to begin the case. The Answer mirrors the format of the Petition, addressing each numbered paragraph of the Petition with a corresponding numbered paragraph that responds to it. The spouse is limited to three choices: admit the allegation, deny it, or state they don’t know. If a spouse admits an allegation, that issue cannot later be contested; it falls out of the proceeding because it is accepted as accurate. Thus, most allegations will be met with denials at the early stage of the divorce.

If the divorce is fault-based, the Answer will likely also include defenses. Such a defense is acquiescence, meaning that the filing spouse was agreeable to the claimed misconduct. However, what is not a defense is “mutuality of fault.” The court ruled in Cohee v. Cohee that one party's fault should not be raised as a defense to the other party’s fault. Allowing this would require the court to decide which spouse’s actions were worse—a game with no winner. Instead, the other spouse's fault should be addressed independently in a Counter Petition.

Counter Petition

In the context of divorce, counterclaims contained in Counter Petitions generally serve non-legal purposes. The only “relief” that a counterclaim seeks is the same as the relief sought by the Petition: dissolving the marriage. Instead, counterclaims may be made to fulfill personal reasons or to argue that the divorce should be fault-based in favor of the spouse filing the Counter Petition. As discussed above, mutual fault is the most common counterclaim.

In some instances, a spouse may have another claim against his or her spouse, such as battery (physical abuse) or false imprisonment. K.S.A. Section 23-2718 generally does not permit these types of counterclaims to be joined in the action for divorce. Instead, the spouse should file a separate lawsuit to address that wrong and leave the divorce proceeding to handle the issues dealing with separating the couple. However, if both parties agree and the court approves, these counterclaims may be consolidated with the divorce proceeding and heard together. The usefulness of this method of resolving claims should be addressed on a case-by-case basis, because many factors can weigh in the benefits and shortcomings of an all-in trial.

Required Parenting Classes

Many district courts have issued a local rule requiring all divorcing couples with minor children to attend classes within a specific time frame. For example, in Johnson County, these classes must be completed within 90 days of filing the Petition. The most prominent of these classes is Parents Forever. The classes aim to ensure that parents are aware of the struggles and difficulties that are likely to arise during a divorce. This includes troubles that occur during divorce and during the years afterwards. These classes focus on three main issues. First, the legal and economic issues arising from divorce and the effects on children. Second, the impact of divorce on children. Third, the effect of divorce on parents and ways to continue successful parenting following separation.

Parents Forever classes are not couples therapy. Parents are not allowed to attend classes together, even though the classes are offered in group settings. Instead, each parent must attend class separately. The parents are also permitted to participate in virtual classes online. A second significant difference is Parents Forever's goal—coping with divorce, not preventing it. The focus will continuously be on successfully raising children despite the divorce.