What is an Answer and Counterclaim?

First, Answers and Complaints 

An answer in a divorce proceeding is exactly what you would expect; it is a response to the complaint.  When one party files a divorce complaint it is “served” on the other party.  As soon as that occurs, the other party will have twenty-one days to respond in the form of an answer.  

            In many ways an answer is similar to a complaint.  It contains the same information, but also gives you or your spouse an opportunity to admit or deny the information in the complaint.  Sometimes this process is easy and harmless.  For example, much of the background information used to establish jurisdiction would not be controversial because it will just be names, addresses, and dates.  Generally, an answer would only deny these pieces of information if there were a factual mistake in the complaint. 

In other instances it will be necessary to make denials in the answer because you do not see eye to eye with your spouse regarding the allegations made in the complaint.  This usually happens in the case of a fault-based divorce where both parties may dispute the reason for the divorce.  To illustrate how this works imagine you are seeking a divorce because you suspect your spouse had an affair.  You would file a complaint alleging adultery and provide any information you have about the affair.  If your spouse disputed that the affair occurred they would deny the information you provided in their answer as being incorrect, or assert their Fifth Amendment constitutional rights.  Another common reason to make a denial in the answer is when the date of separation is contested.  Because the date of separation is important with respect to the distribution of the marital assets it is necessary to ensure the complaint provides the correct date. 

 

Second, Filing a Counterclaim

Oftentimes a party responding to a divorce complaint with an answer will file a counterclaim as well.  The counterclaim provides the responding party an opportunity to make their own allegations about the reason for the divorce and a chance to tell the court what they are asking for.  While the answer is simply admitting or denying information from the complaint, the counterclaim can be used to put forth alternative versions of the facts or a completely different reason for the divorce.  The counterclaim functions just like a complaint, you do not need to prove anything in the counterclaim.  Rather, you just need to make factual statements about the grounds for the divorce and provide information that supports your reason.  The counterclaim also allows the responding party to ask the court for what they want out of the divorce.  This will include information about spousal support, child custody, child support, and the distribution of the assets from your marriage.

Not all divorces will require one party to file an answer or counterclaim.  In an uncontested no-fault divorce if you and your spouse have signed a separation agreement, or property settlement agreement, the terms of that agreement will govern your divorce.  In that case the complaint would be filed with a waiver and an answer would be unnecessary because everything would have already been settled in the process of drafting the separation agreement.

If you are served with a divorce complaint or counterclaim the attorneys of Smith Strong, PLC can advise you on the best course of action.  The answer and counterclaim stage is crucial in the divorce process because not responding appropriately to a complaint will force the court to accept the allegations made as true.  Our experienced attorneys can ensure your response properly addresses the complaint and serves your best interests.  Please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg). 

References: Va. Code Ann. § 20-99