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Lawyers are men whom we hire to protect us from lawyers. — Elbert Hubbard
Maybe you were expecting this, maybe not, but here it comes: your spouse has filed a Complaint for divorce or child custody (or both!), and now you hold papers in your hand that ominously proclaim: “YOU HAVE BEEN SUED IN COURT.” The closest you ever got to a courtroom before today was fighting a traffic ticket. What do you do now?
Douglas Adams had it right: DON’T PANIC. You will get through this. So will your children. Even if the papers you hold impose deadlines, schedule events for you to attend or require payment of fees, odds are that you have at least a couple weeks of breathing room. You have the chance to make good use of the time you have, and more options than you probably think you do. The key not just to survival, but also to success, is above all to keep your head together and to keep reminding yourself: don’t work hard, work smart.
You have been sued in court.
Even a friendly divorce process (well, as friendly as they get) is still a lawsuit. Your spouse, as the Plaintiff, wants something from you that the court has the power to grant. That does not automatically mean that you are going to fight about your divorce, or your property, or your children, but it does mean that your rights and options are going to be affected. When you read the Notice to Defend, take it seriously. Your actions (or your inaction) will have consequences. Educate yourself as thoroughly as you can about where you stand and what your options are, so that the decisions you make are informed ones; in this game, “do-overs” are rare, and often expensive. If you are unsure of your rights, options and obligations or how to exercise or fulfill them, spending a little money now to meet with a lawyer to discuss matters might save you from having to spend a lot of money, later. Let your rule of thumb be: never guess when you can know for sure.
Anatomy of a Complaint.
COVER SHEET: this tells you who versus whom, what particular court is involved, the title of the document, on whose behalf it was filed, and how to contact the lawyer who filed it. A miniature version of this will appear as a “caption” at the top of many documents connected with your court process.
NOTICE TO DEFEND: this is a series of warnings intended to get your attention and encourage you to take this seriously. Take this seriously! It will offer you contact information for the local bar association or lawyer referral service, if you do not already know how to hire a lawyer. As a wise reader, though, you already know that all you really have to do is to call the telephone number at the bottom of this article!
THE BODY OF THE COMPLAINT. This will be a series of numbered paragraphs, each one making an assertion of fact. At the end of each set of factual allegations will be a short paragraph beginning with the word “WHEREFORE,” that tells the court what the Plaintiff wants it to do (e.g., legally dissolve your marriage, divide property, award custody of children). This invokes the jurisdiction of the court over the issues identified, and sets the stage for whatever litigation is going to happen next (if any).
VERIFICATION PAGE. The Plaintiff has signed an affidavit stating that the facts he or she alleged in the Complaint are true, subject to criminal penalties for unsworn falsifications. Don’t let the words “criminal penalties” give you any ideas about “getting” your spouse or co-parent for errors or misstatements, though. Overall, Family Court is unlikely to be interested in arguments over the kind of “technicalities” you hear about in criminal trials.
SUPPORTING DOCUMENTS. There may or may not be additional documents that were served on you with the Complaint, or that you will receive afterward. They can include information sheets in connection with a support claim, orders to participate in child custody-related educational or dispute resolution programs, instructions to pay fees, or a document stating that your marriage is irretrievably broken and that two or more years have passed since your final separation.
A note about that last item: if you are served with a document called an “Affidavit under Section 3301(d) of the Divorce Code,” which states that your marriage is irretrievably broken and that two or more years have passed since your final separation, you are probably facing a deadline of not more than 40 days either to do something affirmative to protect your rights as a spouse, or to risk losing them when a divorce decree is awarded without need for your consent.
Read everything both carefully and thoroughly.
The papers you hold are your spouse’s or co-parent’s representations to the court about what is going on, and what he or she wants the court to do about it. They will tell you what he or she is asking for, and (by its absence) what isn’t being requested at this time. They may contain instructions to attend programs, or to pay fees. They may include deadlines. If action or a response is necessary, and you do not act or respond as the court instructs, there are consequences that can be severely negative. Don’t stick your head in the sand; of all the luxuries you cannot afford, that is the most dangerous of them all.
Often, people will find that all their spouse wants is the piece of paper saying that the marriage is dissolved, because all the Complaint asks for is a Decree in Divorce. If that is the case the matter can be relatively simple, but be sure that you, yourself do not want anything else out of the situation before you decide to cooperate, or to allow matters to go forward without your opposition.
Should I call my ex’s lawyer?
If you are unrepresented, you can contact your spouse’s or co-parent’s lawyer if you wish, to discuss the case and any possible resolution. If you decide to make the call be polite and civil, and know that you have a right to the same treatment from him. Remember that you are calling someone whose job is to protect and advance the interests of someone who wants something from you, whether you want to give it or not. However polite or courteous he is — and he should be! — you can count on the lawyer listening to everything you say with a keen ear, hoping to learn something that he can turn to his client’s advantage if push comes to shove. Keep your conversation on-topic and to the point, and don’t bother trying to convince him that you are in the right and your spouse or co-parent is in the wrong; he’s being paid to do a job, so even if you convince him personally, you won’t convince him professionally. Every lawyer has his game-face, and that’s the only one you get to see when you deal with him. He might be able to answer your questions (except for giving you legal advice, which he can never do), and he might (and should) be telling you the literal truth… but not necessarily the complete truth. Never forget that he has a client to serve and protect, and a set of goals to achieve. Get any promises he may make in writing; a good lawyer will understand why you want that, and will deal with you as fairly as possible subject to his duties to his client. The bottom line here is that the only person in the situation whose job is to protect your interests is you, unless you decide to retain an attorney for yourself. Keep your eyes and ears open, and your critical mind engaged.
Should I file an answer to the Complaint with the court?
Family lawsuits in Pennsylvania are handled differently than civil lawsuits. Pennsylvania law does not require that divorce and child custody defendants file an answer to Complaints. There are times when filing such an answer is desirable anyway, and also times when it is also desirable (or necessary) to file claims of your own in response to a divorce Complaint or a child custody Complaint. There are circumstances (especially if you are being sued for divorce under the ground of Irretrievable Breakdown) that if you do not challenge your opponent’s claims or raise claims of your own in a timely fashion, you can lose important rights. Educate yourself, and if you are at all in doubt, talk to a lawyer sooner rather than later! It is better to get information while there is time to do something about it, than to wish that you had. I can’t tell you how many times in my career I have wished for a time machine, to let me go back months or years to help a client when he or she could have used my help the most.
Set clear and achievable goals.
Don’t fight just to fight, and don’t allow yourself to be provoked into going to great lengths just to “set the record straight.” The paperwork in your hand tells you what your spouse or co-parent wants out of the situation, and now is the time to consider what you want. Stay focused. Make sure that your goals are reasonable and reasonably achievable, remembering that some forms of justice are beyond the authority or willingness of a court to award and must be left to a higher authority. Consulting with a lawyer can give you a useful “reality check” that your goals are achievable, and can offer you guidance about how to go about achieving them. Think of the court as a dance hall, and take the opportunity to learn the steps now that the music has started.
Dealing with deadlines and court dates.
There is an old Latin expression: festina lente, or “hurry slowly.” Haste is not the same thing as speed, and just as in a distance race, starting promptly and pacing yourself can be the key to success. You need not fear deadlines if you organize yourself and your resources, get the information you need, and prepare yourself properly. If you are represented, make sure that your attorney is telling you what you need to do, and what you can expect. Take deadlines and appointments very, very seriously. Know what you are getting into before you get into it. Be where the court says you need to be, pay what the court says you need to pay, and be fully prepared to proceed when you arrive at your appointment. Court is most frightening to those who are unprepared, and who have no understanding of what they are in for. That can be fixed if you are willing to be attentive, proactive and diligent.
If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call me to set up a personal consultation. This blog will feature periodic updates. Consider subscribing! Please do not comment anonymously, and do not post anything that you consider confidential. I try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that I will not offer legal advice via the Internet.
Michael B. Greenstein
1789 S. Braddock Avenue, Suite 570
Pittsburgh, PA 15218