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To File or Not To File, That Is The Question...

Tue, Aug 06, 2013 at 12:00AM

PhilIn my practice of family law, I am often asked during consults by prospective clients, who have been served with divorce papers, if they need to file a written response to the Petition for Dissolution of Marriage.  My first and immediate response is always yes, and I then confirm when they have been served.  This is important, for the law in Florida is that the person served must file a written response within 20 days after the date of being served.  The other important consideration is what to file, for many people feel that if they file only what is called an Answer to the Petition, that is sufficient.  Legally, it may not be enough, and that is why I always recommend to the person to file both an Answer and a Counter-Petition for Dissolution of Marriage.  Some important considerations are the following:


-The Answer is your written notice to both the Court and your spouse that has filed for divorce as to your positions regarding each paragraph of requested relief in the Petition.  So, basically, either admitting/agreeing or denying/objecting to what is being requested, and nothing more. 


-A Counter-Petition is your written document in response to the Petition, which outlines your request(s) for what is referred to as affirmative relief from the Court, or basically, what you wish to see happen as to the issues and categories that make up your divorce case.  Without your Counter-Petition filed, and if you don’t reach a settlement agreement with your spouse outside of court and you have to go to a trial, you may not be able to present to the Judge your side of the case as you would ultimately like to, as you have not made any affirmative relief requests.  A few examples of this would be not requesting spousal support/alimony, exclusive use and possession of the marital home, or partition of real property  (there are exceptions to every rule, so for example, children’s issues/parenting plan, the Judge has to consider what is always in the best interest of the children, even if you have not filed a Counter-Petition, but it is still good practice to do so).


-Good practice to file your Answer and Counter-Petition at the same time, and again, within the 20 day window of time to file a response.


-There is a clerk of court filing fee to file a Counter-Petition, which is due and payable to the Court at the time you file your paperwork.  Most of the Florida Clerk’s offices have their schedule of fees posted online.


If you have been served with divorce papers and would like to discuss further your rights and responsibilities under Florida law, please contact our office at 386.257.1222 to schedule a consultation.   


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