If you have been served with divorce papers, as your spouse has filed for divorce in the Massachusetts Probate and Family Court, you have several options as to the next steps to take in the case. Consider the following options:
- You may file an Answer to your spouse’s Complaint.
Your Answer is the official responsive pleading to your spouse’s allegations in his or her Complaint. In this document, you admit or deny each of the statements contained in the plaintiff’s Complaint.
According to the Massachusetts Rules of Domestic Relations Procedure, the defendant in his or her Answer “shall state in short and plain terms his defenses to such claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial.”
Under most circumstances, after you are served with divorce papers, your Answer will be due 20 days from the date of service of process.
In your Answer, you may include affirmative defenses
Affirmative defenses include “accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”
- Under some circumstances, you may file a motion to dismiss.
Under Rule 12, this motion asks the Court to dismiss the claims against you. In a divorce claim, a motion may be filed for several reasons, including:
1. Lack of jurisdiction over the subject matter;
2. Lack of jurisdiction over the person;
3. Improper venue;
4. Insufficiency of process;
5. Insufficiency of service of process;
6. Failure to state a claim on which relief can be granted;
7. Failure to join a party under Rule 19;
8. Misnomer of a party;
9. Pendency of a prior action in a court of the Commonwealth.
For example, under the Rules, you may file a motion to dismiss if your domicile is disputed, if service of process was improper, or if there is a prior divorce claim already in effect. The documents you will need to file typically include: the motion, which asks the Court to dismiss the claim; a memorandum of law which serves as the legal support for your motion; and an affidavit where you include key facts in support of your motion, signed under oath and under the pains and penalties of perjury.
Once you are served with divorce papers, you should file any motions to dismiss prior to filing your Answer or any other responsive pleading.
- You may file a counterclaim or a cross-complaint
A counterclaim is the defendant’s claim against the plaintiff. You may file a counterclaim in your Answer; if you designate it as a counterclaim, no entry fee should be due. Your counterclaim should allow you to bring up claims for divorce, spousal support, property division, custody, and child support, among others.
In the alternative, you may choose to omit counterclaims and instead file a cross-complaint for divorce. According to the Rules, “In a contested action for divorce if the defendant upon payment of the proper entry fee and at any time prior to the conclusion of the hearing shall cause to be entered his or her cross-complaint for divorce, the court shall allow the entry of said cross-complaint after giving of such notice or service to the new defendant as the court, in its discretion, shall order.”
If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.