In most civil litigation, when you are sued, such as in a divorce, which is technically a complaint, you have to provide an answer to avoid a default judgment and losing.1 However, in divorce, there is no requirement to provide a cross-petition (or answer in a technical sense).2 Yet in a few instances, it may make sense to cross-petition. This blog addresses cross-petitions and their uses and some common myths surrounding cross-petitions.
Factual mistakes: Perhaps the most common reason to file a cross-petition is that the divorce petition has factual mistakes that should be corrected to have accurate filings before the court. These range from an incorrect date of marriage to indicating the wife wants her maiden name changed.3 That said, more serious matters that may have significant implications for the divorce would be an indication in a cross-petition, such as, that the wife is pregnant, as the court may divorce the parties but retains jurisdiction over the unborn child. The factors that must be in a divorce are set forth by statute.4 Precise legal filings throughout divorce proceedings lead to fewer problems and delays later.
Fault: A myth that may cause some litigants to want to file a cross-petition is when there has been an affair. Many lawyers have had a “wounded” spouse who wants to counter-petition to disclose this affair. This is more about retribution than moving the case forward and is or can be a harmful filing. In any event, all states have long-rejected fault-based divorce5 and such a counter-petition is not legally worth the time or money to file and could be subject to being stricken.7
Stopping a divorce: Another myth is a counter-petition can stop a divorce if one party does not want the divorce. However, this is not the case. A litigant who does not want to be divorced may slow the process down in many ways, but a cross-petition will not and cannot stop a divorce. As long as a party alleges that there has been an “irretrievable breakdown of the marriage” and the court finds this (as they always do if a party testifies to the same), the divorce will be granted. In addition, there are three (3) other grounds for a divorce but they are never cited as the basis for the divorce: (1) the conviction of either of the parties, subsequent to the marriage, of a felony, (2) impotence, existing at the time of the marriage, or (3) incurable insanity of either party for a period of at least two (2) years.7
Starting a trial theme: In all divorce cases, the trial court is to presume an equal division of property8 and that either parent is fit to be the custodial parent.9 That said, to deviate from the presumption or seek sole physical and/or legal custody, a responsive petition may be the place to start the trial theme you want to get before the court, namely why it should grant your relief when it gets to trial. While cross-petitions are not used often for this purpose, in the right case a lawyer may use this to being to tell the story for why a litigant seeks his or her position under the law.
Opposite relief: When a party has filed a Verified Petition for Dissolution of Marriage, he or she may be very specific about the division of assets and custody, although all that is required are the statutory factors must be enumerated.10 That said, some Petitions are very specific and strong in what they seek and why on divorce insofar as property division and the award of custody is concerned. In these cases, to counter, it may make sense to file a cross-petition.
Ultimately, a cross-petition to a divorce may be useful in some circumstances. Skilled divorce counsel can assist you if this is a pleading you should file. Contrariwise, a seasoned divorce counsel can counsel you why is it unwise because it is based on common myths or outdated laws, such as fault-based divorce. Ciyou & Dixon, P.C. advocates handle domestic cases of all types throughout the state. This blog is written for general educational purposes and is not intended as legal advice. It is an advertisement.
- Indiana Rule of Trial Procedure 7(A).
- Pursuant to Indiana Code section 31-15-2-9, “[a] responsive pleading or counter-petition may be filed under this chapter.”
- Indiana Code section 31-15-2-18: “A woman who desires the restoration of her maiden or previous married name must set out the name she desires to be restored to her in her petition for dissolution as a part of the relief sought. The court shall grant the name change upon entering the decree of dissolution.”
- Indiana Code section 31-15-3-4.
- Flora v. Flora, 337 N.E.2d 846, 849 (Ind.Ct.App.1976): “The Indiana Dissolution of Marriage Act expressly abolished the previously existing grounds for a divorce which required a finding of fault on the part of one of the spouses.”
- Indiana Rule of Trial Procedure 12(F).
- Indiana Code section 31-15-2-3.
- Indiana Code section 31-15-7-5.
- Indiana Code section 41-17-2-8.
- Indiana Rule of Trial Procedure 8: “To state a claim for relief, a pleading must contain (1) a short and plain statement of the of the claim showing that the pleader is entitled to relief”. This is called notice pleading and is allowable in most civil litigation.