What If You Do Not Serve An Answer?

In Minnesota, a divorce Summons contains a formal notice that the person being served with the Summons and Petition has thirty (30) days in which to serve an Answer.  What happens if you do not serve an Answer?  The answer is simple: you lose. 

An “Answer” is a formal pleading that is similar to the Petition.  A letter stating your objections to the relief requested in the Petition is not an Answer.  Neither is a telephone call to your spouse’s attorney.  An Answer is a formal pleading that is filed with the court.  If you do not serve a formal Answer within thirty (30) days of the date you were served with the divorce Summons and Petition, your spouse’s attorney can go to court without telling you.  He or she can ask for anything (again, without telling you) and he or she will probably receive an Order granting whatever it is they ask for. 

The result can be a disaster for you.  Your spouse can get all of the property.  Your spouse can get custody of the kids with little or no parenting time going to you.  Your spouse can get an Order requiring you to pay exhoribant and unfair amounts for spousal and family support.  It is very difficult to overturn a default Order.  If you snooze, generally speaking the court will not care why.  If you do not serve an Answer, you lose.

Recently I dealt with an unscrupulous Minnesota divorce attorney.  He (along with an attorney colleague) represented a family member (a mistake), and the attorney was as bitter about the divorce as his client.  He and the other attorney had the divorce petition served and then (apparently) instructed the client to “negotiate” with the spouse for thirty (30) days.  The spouse was not very savvy.  She thought that as long as she and her spouse were negotiating, everything was fine.  But, after thirty (30) days, the unscrupulous Minnesota divorce attorneys went to court and obtained a default divorce Judgment and Decree giving their client everything–including the house and all of the $100,000.00 plus retirement assets.  The spouse who failed to answer (because she thought she was negotiating with her spouse) got nothing.  When she realized what had happened, she called my office.  She was frantic.

I immediately went into action.  In cases like this, even a few days delay can prove fatal.  I contacted the court and scheduled an emergency hearing to try to vacate the divorce Judgment and Decree that had been entered without my client’s knowledge or consent.  I filed our pleadings as soon as possible.  The court held a hearing and when it became clear what had happened, the court threw out most of the provisions of the divorce Judgment and Decree.  I was then able to push for an equal division of assets.  Eventually, my client did get an equal division of assets.  However, the cost of the proceeding to reopen the case could have been avoided.  And, there was no guarantee that we would have won.  When the judge heard my argument to reopen, it was pretty clear what the other side had done.  But, not all cases are quite so clear.

The moral of this story is when you are served with a divorce Summons and Petition in Minnesota, do not wait.  Do not stick it in a pile of papers on your desk, to be looked at in a few weeks.  Do not assume your spouse is “nice” and will cut you slack.  Instead, call an attorney and take all appropriate steps to protect your future.

As always, you should feel free to call Fiskum Law at (952) 270-7700 with any questions.

Daniel Fiskum is a Minnesota divorce attorney who has been practicing since 1992. He is a graduate of the University of Minnesota and has been named a "Super Lawyer" by the Minnesota Journal of Law and Politics. Mr. Fiskum is currently writing a book for attorneys and non-attorneys entitled "The Streetfighter's Guide to Divorce," which is scheduled for publication in May, 2010. Many of his blog entries will appear in the book. You may contact attorney Fiskum directly at (952) 270-7700. His office is located in the Carlson Towers in Minnetonka, Minnesota. The Fiskum Law website is found at www.fiskumlaw.com.

Tagged with: , , , ,

Leave a Reply