A Counter-Petition for Dissolution of Marriage is similar to a Petition for Dissolution of Marriage in that the party filing a counter-petition is also asking the court to hear their case and grant them a divorce. Both a Petition for Dissolution of Marriage and Counter-Petition for Dissolution of Marriage usually mirror each other with regards to alleging the same facts and requesting the same relief from the court. When you are served with a Petition for Dissolution of Marriage, you must respond to the Petition by filing your appearance or hire an attorney to file their appearance on your behalf and give a written response to the Petition by either admitting or denying the allegations.
There is a filing fee associated with filing the Counter-Petition for Dissolution of Marriage, but it gives you a chance to claim additional allegations that the opposing spouse didn’t claim in their original petition.
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When to file a Counter-Petition for Dissolution of Marriage
If you know you want to file a Counter-Petition for Dissolution of Marriage, you should file it at the same time that you answer the Petition for Dissolution of Marriage. It is possible to file it later, but then you need the court’s permission. Also, you might forget to do it later. Doing it right away, with your appearance, prevents you from overlooking it later.
Once you file your counter-petition, you are known as the Respondent/Counter-Petitioner”. With your Counter-Petition now on file, the Petitioner must respond to your factual claims made in your Counter-Petition, by either admitting or denying the allegations. If the Petitioner does not respond or answer your Counter-Petition, then the court will assume that the Petitioner agrees with all of your factual claims and your relief being requested.
Why should I file a Counter-Petition for Dissolution of Marriage
The majority of clients who come into our office and are the Respondents in the Petition for Dissolution of Marriage, also want a divorce, and might have different claims then their spouse. As a Respondent/Counter-Petitioner, you get to make your own requests from the court. For example, in the Petition for Dissolution of Marriage, the Petitioner may not have made any requests for parenting time or for child support, so you could make those requests in your Counter-Petition. By filing the Counter-Petition, it will force the Petitioner to also give a written response to your factual allegations. I like to think of a Counter-Petition of Dissolution of Marriage like car insurance.
For example, if you get into a car accident with another vehicle and the other driver filed a claim with your car insurance because he believes you were at fault, he can tell the insurance company anything he wants or his beliefs of why the car accident occurred. The same way the other driver can file a claim with your car insurance, you are free to do the same thing. You can also file a claim under the other driver’s car insurance because you too believe the other driver is at fault and should have to pay for your damages. If the other driver decides that he wishes not to go forward on his claim with your insurance for any reason, (maybe he knows deep down that he is at fault) you still have your insurance claim that you filed.
Just like car insurance, the Counter-Petition acts as a safeguard in a sense that you will be permitted to claim additional facts and request your own relief from the court. By filing Counter-Petition for Dissolution of Marriage, it ensures that the Petitioner does not “voluntarily dismiss” or withdraw their petition. Even if the Petitioner voluntarily dismisses their petition, the Respondent can then move forward on their Counter-Petition without having to go through the process of re-filing a new petition and starting the case over from scratch. For instance, a Respondent in a Petition for Dissolution of Marriage who never filed a Counter-Petition for Dissolution of Marriage was court ordered to receive temporary monthly maintenance, formerly known as alimony, from her spouse, the Petitioner. The Petitioner, who is tired of paying maintenance every month to the Respondent, suddenly decides to voluntarily dismiss his Petition for Dissolution of Marriage at the next court date. Because the Petitioner is the party who filed the Petition for Dissolution of Marriage, he is free to voluntarily dismiss the case, which means all the prior court orders including the order for temporary maintenance are no longer in effect. By dropping his case entirely, the Respondent will no longer receive monthly maintenance payments. Had the Respondent filed a Counter-Petition for Dissolution of Marriage, she would still be able to receive the monthly maintenance, and move forward on her Counter-Petition for Dissolution of Marriage, instead of having the entire case be dismissed. This is a good example of why it is important to file a Counter-Petition for Dissolution of Marriage.
For information about this topic or any other concerns related to divorce in Illinois, contact one of the family law and divorce attorneys are Anderson & Boback. Divorce and Family law is all that we do and we will be happy to help.