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Affirmative Defenses & Counterclaims in Massachusetts Divorce Cases

How to Respond to a Massachusetts Divorce Case Aggressively

If you have been served with a divorce case in Massachusetts, there is no time to spare in getting prepared to respond quickly and aggressively to the case.  Remember, although divorce cases are common, they are also a lawsuit between two people.  There is a Plaintiff and a Defendant, just like in other civil lawsuits.

A divorce case should be taken very seriously, even more seriously than any other civil lawsuit.  The reason?  A divorce case not only involves money (property division, child support, alimony), but also involves your children if you have any.  A divorce also affects your freedoms; for example, once a divorce is filed and served the Automatic Restraining Orders apply and bar you from doing things like selling or transferring assets, liquidating bank accounts, and so forth.

So what do you do if you are served with divorce papers?  Here are the steps we suggest:

Step One – Calm Down and Think Rationally

Although a divorce case can be extremely emotionally unnerving, it is important to keep a cool head.  Divorce cases are common, and your behavior may play a role in the case.  If you become violent with your spouse, send angry text messages, or behavior poorly in other ways those actions will be used against you in court.

Step Two – Contact an Attorney

We always recommend hiring a divorce attorney for obvious reasons.  Even if you don’t intend on hiring an attorney to represent you in a case, we recommend you contact an attorney and hire them at least on a limited scope basis to help you strategize and prepare for what’s ahead.

Step Three – Review Complaint and Start Preparing

The Complaint filed by your spouse will include all of the pertinent information that your spouse is requesting the family court make orders.  This is the document that you should review carefully to understand what issues will be involved in your case and what issues you should begin preparing to argue about.  For example, if your spouse is looking for sole legal and sole physical custody of the children, it might state that request on the complaint.

Once you understand the issues, it’s important to begin thinking about what your answer will entail.  Make sure to touch on all the issues that are listed in the complaint so that you have a response filed for each claim.  Match up the paragraph numbers on the complaint to the paragraphs in your Answer.

If you agree with the facts or requests listed in the Complaint, then you can “admit” the statement by stating, “The Defendant admits the Plaintiff’s allegation in paragraph 1 of the Complaint.”  Be careful that you do not admit anything that might be detrimental to you and your case.  If you do not agree with a statement, you will write, “The Defendant denies the Plaintiff’s allegation in paragraph 2 of the Complaint.”

Step Four – File an Answer and Counterclaim

Because a divorce case is a lawsuit, it is important that you “respond” to the action by filing an answer.  We also recommend filing a counterclaim to the divorce.  This page is dedicated to filing an answer and counterclaim.  If you do not respond appropriately right away, your rights may become impaired as the case proceeds through the Family Court.

Affirmative Defenses

There are many defenses that a defendant in a divorce case can plead when he files an answer in the case.  It is important to note that there are certain motions that should be filed before the defendant files an answer to the plaintiff’s complaint, in certain circumstances.  For example, if the defendant believes that there is no jurisdiction over him he should file a motion to quash the summons and dismiss the case.  A qualified divorce attorney should be consulted before taking any action, and always keep in mind the following:

A Defendant Only has 20 Days to File an Answer

After Service of a Divorce Summons!

An answer is a response to the plaintiff’s complaint which admits or denies the allegations made in the complaint.  The answer may also plead “affirmative defenses” which means that the defendant is also asking for relief and is essentially requesting that the court order certain things for the defendant in the divorce, paternity, separate support, or custody case.  This is called a COUNTERCLAIM and is almost always used in conjunction with the filing of an answer, which is different than an affirmative defense.

In divorce cases, the most common affirmative defenses alleged by the defendant may include any of the following:

  • Res judicata (meaning that the case has already been decided, perhaps in another court)
  • Duress (if the agreement proposed to be incorporated into a judgment is the product of coercion)
  • Fraud (i.e. failing to disclose assets)
  • Statute of frauds (alleged oral agreements transferring land)
  • Illegality
  • Laches (when the plaintiff waits an unreasonably long time to bring an action).

There are other defenses utilized less often, including connivance (where the plaintiff is guilty of what he claims) and condonation (where the plaintiff knew about the defendant’s wrongdoing but overlooked and avoided it).

When motions to modify a judgment are filed, one of the best defenses is to allege that a contract exists wherein the parties have agreed to a final resolution of their financial affairs and waived any right to seek modification.

It is actually somewhere rare for a Defendant to file for an “affirmative defense” to a divorce case these days.  The reason is that almost all divorce cases are not based on the “fault” of the other party, but rather based on “irreconcilable differences”.  Click here for a very detailed page that discusses the grounds for divorce.

Counterclaims

Unlike affirmative defenses to fault-based divorce cases, counterclaims are very common and are (or should be) used in almost every divorce case by the Defendant.  What does “Counterclaim” mean?  To file a counterclaim means that the defendant asks for affirmative relief from the court in the same case that the plaintiff filed.  Absent the filing of a counterclaim, the defendant is helpless in asking the family court for anything!  The court will not be permitted to take any action except allow or deny the items contained in the complaint filed by the plaintiff.

When a properly filed counterclaim is filed, the defendant and plaintiff are put on essentially equal footing.  The court will have the ability to grant the requests of both parties.

A counterclaim is included in the same pleading as the Answer.  The answer goes through each paragraph of the plaintiff’s complaint for divorce and admits or denies the claim.

A defendant can ask for whatever they want in the counterclaim, so long as it is allowable by law.  For example, the defendant (called the Counterclaim Plaintiff or “Plaintiff-in-Counterclaim”) can ask for any of the following relief:

  • Alimony
  • Child support
  • For divorce based on irreconcilable differences
  • For divorce based on any of the “fault” based divorce actions
  • For health insurance
  • For health insurance for the children
  • For the division of property
  • That a particular property be awarded to the defendant
  • For a restraining order prohibiting the plaintiff from taking certain actions.
We have provided you with a template Counterclaim, below:

COUNTERCLAIM

Further, by way of COUNTERCLAIM, __________, the Counterclaim Plaintiff says:

Counterclaim Plaintiff, _________, resides at _________________________, Massachusetts, and is lawfully married to the Counterclaim Defendant, _____________, who resides at _______________________________________.

The parties were married at ____________ County, Massachusetts, on _______________ and last lived together in _________________, __________ County, Massachusetts.

There are ____ children of the marriage, including John Boy Doe, born _____ and Jane Girl Doe, born ____________.

On or about _______________, at ________, in __________ County, Massachusetts, there came to be and continues to be an irretrievable breakdown of the marriage of the parties.

Wherefore, the Counterclaim Plaintiff requests that the Court:

a) Grant a divorce based on irreconcilable differences.

b) Grant an order for suitable support for the Counterclaim Plaintiff and the parties’ ___ children.

c) Grant an order for proper health insurance coverage for the Counterclaim Plaintiff and the parties’ _____ children.

d) Grant an order that ensures that the Counterclaim Defendant does not impair the liberties of the Counterclaim Plaintiff.

e) Grant an order that equitably divides the parties’ property.

f) Grant conveyance of the real property located at ________________________ and recorded with the ________________ County Registry of Deeds with the following recordation information: ______________________________________________.

Dated: ________________

By __________’s Attorney,

_______________________________________

Name

Contact Information

How to file an Answer and Counterclaim

Once your answer and counterclaim is prepared, you will need to file and serve it on the other side.  All the pertinent information you will need to accomplish this task is found on the Complaint and Summons that you were served with by your spouse.

First, look to see what courthouse the divorce case was filed.  That is where you will file your Answer and Counterclaim.  If the case is filed in the Norfolk County Probate and Family Court in Canton for example, that is where you will file your answer.

When sending in your answer, you can either file by mail or drop it off in person.

Second, check to see whether your spouse has an attorney.  A copy of your answer and counterclaim needs to be “served” on the attorney, or your spouse if they don’t have an attorney, at the time you are sending in the document to file.  Prepare a Certificate of Service.  You should have an adult not affiliated with the case mail the documents so that service is “valid”.

For additional information about pleading defenses and counterclaims in a divorce case, please call or email our office today.

Our firm has offices in both Boston and New Bedford and serves all courts in Suffolk County, Bristol County, Middlesex County and Plymouth County.

If you have any questions about divorce or family law in Boston or New Bedford, please call us today or email us at your convenience.



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