Understanding An Answer And When To File An Answer To A Petition For Divorce

Key Points

• Time to Answer: The delay to answer is 21 days from service. If no answer is timely filed, the Court takes the allegations of the petition to be admitted as true.

• Preparing an Answer: One purpose of an answer is to admit or deny the allegations of the petition or motion. A well-written petition has numbered paragraphs that each assert a brief fact, and the answer will respond to each paragraph.

• Asserting Defenses: An answer may also assert defenses that relate both to the behavior of the party who filed the petition and the party who is filing the answer.

An Answer Admits or Denies the Allegations in the Original Petition

One purpose of an answer is to admit or deny the allegations of the petition or motion. A well-written petition has numbered paragraphs, and each paragraph asserts a brief fact.

An answer responds to each paragraph of a petition with an admission or a denial. If the numbered paragraph is entirely true, the answer admits the facts of the paragraph. If the numbered paragraph is partly true, the answer can admit the true part and deny the untrue part. When nothing in the paragraph is true, the answer denies the paragraph.

Answers should be filed within 15 days of service of the petition or motion. If no answer is timely filed, the Court takes the allegations of the petition to be admitted as true.

An Answer Can Assert Defenses

When defenses exist, an answer also states the facts of the defenses in short and concise terms. Defenses are very fact-specific.

Some defenses relate to the behavior of the party that filed the petition. For example, say a petition states that a parent refused to allow the other parent custody on one day, which is true. But the petition does not state that the parent who filed it never asked for custody on that day, which is also true. Any facts omitted by the petition can be included in an answer as a defense.

Defenses can also explain the behavior of the party filing an answer. Some defenses are circumstantial. This means that the situation provides the reason the party filing the answer acted in the way they did. For example, if a parent is on their way to a custody exchange but gets into a car accident and cannot meet the other parent, the car accident is the reason the parent failed to arrive at the custody exchange and can be explained in the answer.

An answer must also include a prayer, which is a request to the Court for a result in favor of the party filing the answer.

A defendant spouse is not required by law to file an answer to a petition for an Article 102 Divorce.  Two important types of claims that might require a response are fault and incidental matters. A defendant spouse may want to file an answer to a petition for divorce if: 

• The facts asserted in the original petition for divorce allege fault and need to be denied.  
• The original petition for divorce asks the Court to decide incidental matters.  If so, the answer should include any additional facts that the defendant spouse would like the Court to consider in deciding on the incidental matters. 
• The original petition for divorce does not ask the Court to decide incidental matters. If it does not, the defendant spouse may need to request that the Court decide incidental matters.  Any award of child support or spousal support will be retroactive to the date that the request was filed with the Court. This means that the payor will have to make up for the time before the Court sets an amount for support but after the request was filed. 
• The spouses have already lived separate and apart for the time required to get a divorce before the petition for article 102 divorce was filed. In this situation, the defendant spouse can also file a Reconventional Demand for an Article 103 Divorce.

An answer to a petition for an Article 103 Divorce is not necessary. The decision whether to answer depends on what the petition for divorce claims and the relief sought.

Two important types of claims that might require a response are fault and incidental matters. If an answer is not filed within 21 days after service of the Petition for 103 Divorce, the petitioning spouse will be able to seek a default judgment of divorce. 

You may not need to respond if:

• you have no children under 18 years old

• you have the financial means to support yourself

• you and your spouse did not get any property during the marriage and

• your spouse's petition for divorce asks for a judgment of divorce based on living separate and apart for the required time to get a divorce, and does not ask for support or a division of property.

If you have a child or children under 18 years of age

If you have a child under 18 years old, read the petition to see if it names your child as a child of the marriage. If you do have a child under the age of 18 and the petition fails to name them, you should file an answer.

If the Court needs to decide child custody and support, but the petition does not raise these issues, you can file a motion for determination of incidental matters. The law does not require anyone to ask for child custody or support. But, a child custody and support judgment ensures both parties are aware of their responsibilities. If you decide later that you want an order of child custody or support, you can file before the child reaches the age of 18.

If the petition for divorce accuses you of adultery, domestic abuse or other fault

If the accusations are not formally denied in an answer, the Court will consider them admitted. For more information, see this article on fault.