11 Oct 17

Can he file for a divorce if I’ve already filed and served him papers?

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Once you’ve filed for divorce and had your spouse served with papers, he won’t be able to file for divorce and will instead need to respond to your divorce petition. There are situations where two divorce petitions can go through, in which case one must be dismissed – typically whichever petition was filed later.

Here’s what you need to know about what happens when both spouses file divorce petitions.

How Your Spouse Could File for Divorce When You’ve Already Filed

After you file for divorce, a clerk will record that divorce petition, and it will be your responsibility to have your spouse served with the divorce paperwork. The length of time you have to serve your spouse varies depending on where you’re located. In New York, the limit is 120 days.

Let’s say that your spouse attempts to file for divorce after you’ve filed but before you’ve had him served the paperwork. If the clerk sees that you’ve already filed for divorce, they won’t let your spouse’s petition go through. If the records haven’t updated yet and the clerk doesn’t realize that you’ve already filed, then they will likely process your spouse’s divorce petition, at which point there will be two divorce petitions, one for each of you.

Once your spouse has been served, this is no longer a concern, as he wouldn’t be able to file divorce papers. This means that it’s in your best interest to serve your spouse as soon as possible after filing for divorce.

What Happens When There Are Two Divorce Petitions

When you and your spouse each file for divorce, one needs to be withdrawn or dismissed. You two can negotiate to decide which petition will be withdrawn. If you can’t come to an agreement, then you can petition the court to dismiss your spouse’s petition. The court will typically dismiss whichever divorce petition was filed later.

Making a Counterclaim

When you file for divorce, you must include the grounds for divorce in the petition. Grounds are the reason for the divorce, and these will depend on whether you’re filing a no-fault divorce, which is available in every state, or a fault divorce, which is available in some states.

With a no-fault divorce, you’re not alleging your spouse was at fault. The grounds for a no-fault divorce are usually irreconcilable differences.

With a fault divorce, you’re alleging that your spouse was at fault for the divorce. You can then attempt to use your spouse’s actions to get a more favorable settlement in the divorce.

When you have your spouse served with divorce paperwork, he must respond in writing with his answer, where he can agree with your petition, deny it, or claim that he can’t agree or deny due to a lack of information. If he denies it, he can include a counterclaim where he presents his own grounds for divorce.

For example, let’s say that you file for divorce on the grounds of abandonment, alleging that your spouse moved out and hasn’t been home in three months. If he has a counterclaim that you committed adultery which prompted him to move out, he could put that in his answer. The case would then depend on the evidence each of you could present to the court.

The divorce process can be stressful and difficult, especially when you’ve never gone through it before. Sometimes spouses attempt to file unnecessary paperwork simply to bog down the process.

A qualified divorce lawyer can guide you as you go through a divorce. Your lawyer can help you get your petition filed properly, recommend a process server to have your spouse served and explain what to do if your spouse files for divorce after you. They could also go to the court in this situation to ask that your spouse’s divorce petition gets dismissed.

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