For years I’ve advised, if you know you’re going to be in a fight, hit first. I am a firm believer that that advice is good on the playground and in litigation. Of course, if you guess wrong, now you’re in a fight that you don’t need to be in.
In divorce or custody, what “hitting first” means is filing your case before the other side has a chance to file. I’ve written on the topic before, and you can find my thoughts on that here.
The follow-up topic is one that people sometimes have a hard time wrapping their minds around. That is, “When do I have to tell my spouse that I’ve filed?”
The easy answer is this: Never.
The more complicated answer is: If you decide to never go through with the case, you never have to tell the other side. You can theoretically live happily ever after, and dismiss the case at your leisure, or wait for the court to dismiss it whenever it decides to.
If you decide to go through with the case, you can tell the other side in several different ways. Here are a few:
1. Formal Service. This is where a Constable, Sheriff, or Private Process Server comes to a residence or business and says, “Mr. Jones?” “Yes?” “I have something for you.” And hands the person a packet of papers.
The papers typically consist of a Summons and a copy of the Petition. The Petition is the document that starts the lawsuit – and both Divorce and Custody matters are types of lawsuits. And the Summons is the part that tells the person being served how long they have to respond to the case before they lose by default.
If you are hoping that your case will be extremely amicable, you probably don’t want to go the Formal Service route. Having a Constable or other person hand you papers that say, “YOU HAVE BEEN SUED,” is not a way to make people happy.
And unlike on TV, the person served does not have to sign anything to be officially served.
2. Informal Service. If you want to let the other party know that a case has been started, but you don’t want to upset them unduly, you may hand them or mail them a copy of the Petition that has been filed. Or, if you have each hired an attorney, your attorney can email a copy of the Petition to the other party’s attorney.
As long as an Answer or other responsive pleading gets filed by the other side, any need for service has been satisfied.
3. Waiver of Service. Often times, only one party will be represented by an attorney. That attorney may prepare a document called a Waiver of Service for the other party to sign. The Waiver takes the place of service – and, if prepared in certain ways, may allow the case to proceed with no further notice to the non-represented party.
If presented with a Waiver, you may want to seek legal counsel to at least review the Waiver, so you don’t agree to more than you mean to. And remember: One attorney (or law firm) can NOT ethically represent or advise both sides of the case, and an ethical attorney should make this extremely clear.
So, when do you have to tell the other side that a case has started? Never, if you are not going to go through with the matter. If you filed it “Just in Case,” or you change your mind, or they change their mind, the case can be dismissed, and the other party may never know.
But, note that the case does not “disappear.” It will remain memorialized in the court records. So if your spouse ever looks – either personally on the court’s computer system or with the help of an attorney or clerk – he or she could find the filing.
If you decide to go through with the case – either because you are forced to by the other party’s actions or your own choice – you have options on how to tell the other side. You do not have to do it in a way that is embarrassing or confrontational. A copy of the Petition can be handed to them, mailed to them by you or your attorney, or left with a note on the kitchen table.
Going through a Divorce or Custody matter is painful enough – there is no reason to add trauma to it if you don’t have to. And “starting the fight” by being the one filing does not mean that there has to be a war. The fighting does not have to be anything beyond names opposite each other on paper.