People have many reasons why they may not file an Answer when served with a Complaint for Divorce or some other family law pleading. None of these reasons matter. If you want to protect yourself, you must file an Answer.
Not filing an Answer does not slow down or halt proceedings in any way. If you do not file an Answer after you have been served, then under Georgia law you are also no longer entitled to any further notice, including any of the dates of future hearings.
Your spouse or the other parent will continue to move forward with the case. The court needs nothing from you to keep going. This is true regardless of whether you are still living with your spouse, or if your spouse tells you that he or she won’t follow through with the divorce, or even if she says, “I’m pregnant so the court won’t allow the divorce to go through.”
If you do not file an Answer, your spouse is allowed to move to a final trial, ask for sole custody of the kids, child support, an award of all property, and even an award of attorney’s fees against you.
There is no requirement in the State of Georgia that a woman cannot be pregnant during a divorce. Furthermore, continuing to live together with your spouse does not prohibit the divorce from going forward. This is true even if your spouse promised that he or she will not move forward with the divorce. If you don’t believe me, check out King v. King, 251 S.E.2d 516. It is not necessarily considered fraudulent for your spouse to keep you in the dark about any upcoming court dates, or what they will ask for in the divorce.
Consider a recent case of mine, we served the wife with a Complaint for Divorce. She failed to file an Answer. She continued to live with her husband in the same house, even in the same bed. In fact, she learned that she was pregnant just one month after she was served with the Complaint for Divorce. The couple also have three other minor children.
Pursuant to Georgia law, we took a final hearing. We asked for, and the court awarded my client, full primary custody of all the children, child support against her, 100% of his military pension, and all other property he asked for. Since she did not file an Answer, she was not entitled to notice of any future hearings, including any final hearing date.
Months later, the now pregnant wife filed to set aside the divorce decree on the grounds of fraud. Her attorney presented pictures of her and her husband laughing and smiling together after the complaint for divorce was filed, communications of them discussing the children, the pregnancy, and so on. They alleged that it was fraudulent for the husband to behave this way and yet still pursue the divorce.
Well…yes, these things can be set aside sometimes, but as the King case (one of many such cases) demonstrates, it is not necessarily fraudulent. Even if it was fraudulent under Georgia law, to set aside a divorce decree, the fraud has to be unmixed with your own negligence. It’s hard to argue (although the wife in this case will) that failing to file an Answer is not negligent on her part.
Long and short of it is, if you are served with a complaint for divorce or paternity, legitimation, separation, or other lawsuit in the State of Georgia, you must file an Answer. Ignoring the complaint or petition for divorce is the absolute worst thing you can do. You give up your ability to protect yourself and your children’s rights. Trying to undo the damage done under these circumstances requires a very good attorney who knows what they are doing, and still it is not a simple matter.
Scott Shaw is founder and principal of Shaw Law Firm PC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm has offices in Dunwoody/Sandy Springs and serves the greater Metro Atlanta area, particularly the counties of Fulton, DeKalb, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today or call us at 770-594-8309.
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