Sometimes clients are surprised by what their spouse asks for in the initial documents filed in a divorce. These documents, known as “pleadings” are filed with the court and state the legal basis for the cause along with the requests of each party.
In a divorce, the first pleading filed is the complaint for dissolution of marriage. The divorce complaint is signed by the person initiating the divorce process, and then filed with the clerk of the district court to begin the divorce process. The complaint for dissolution of marriage will set forth in general terms what the plaintiff (the person who filed) is asking the court to order. For example, the complaint may address the plaintiff’s position regarding custody, division of property, payment for expenses for the children, alimony, and attorney fees, among other issues.
The defendant then files a written response to the complaint for dissolution of marriage. This written response is called an answer, which serves to admit or deny the allegations in the plaintiff’s complaint. Typically, the defendant also files a counterclaim. The counterclaim will address the defendant’s position regarding the issues in the divorce.
While these documents state each party’s positions in general terms, sometimes the specific requests in these documents can be surprising or hurtful for the other spouse.
Here’s an example. You and your spouse have discussed at length that you believe sharing joint custody of your minor children is in their best interests. However, upon consulting with your lawyer, she advises you to request the “maximum relief possible” from the court in the complaint and request sole physical custody. Your spouse, expecting your complaint to reflect your verbal custody agreement, may be surprised or feel hurt.
Many times lawyers will advise their clients to request the “maximum relief possible” under the law in Nebraska in the initial complaint, regardless of any prior agreements reached between the parties. While there are several strategic and procedural reasons for this, in general, if the maximum relief possible is requested in the initial document, the court has the ability to grant it.
If you and your spouse agree at the beginning of the case that you will share joint physical custody and then, there is a change of circumstances in the middle of your case that causes you to change your mind about this agreement, a complaint that sought the maximum relief possible regarding custody will not need to be amended and the court will be able to award you the custody arrangement you seek.
If your complaint requested an award of joint physical custody and you subsequently change your mind, your initial complaint may need to be amended and the strength of your new legal position regarding the custody issue may be jeopardized.
However, in this example, just because your complaint seeks sole physical custody, your settlement position may remain that you share joint physical custody with your spouse.
Talk to your lawyer about your goals and wishes regarding each issue in your divorce. Keep in mind that if you receive a formal pleading that sets forth allegations or positions that surprise you or seem inequitable, know that it the other party may simply be requesting the “maximum relief possible” under the law, but the final agreement or order that is entered may look different.