What is a Counter-Affidavit in Divorce?

Posted on October 1st, 2021 in Divorce

To explain what a counter-affidavit is, we must first explain what an affidavit is. It’s a written statement someone makes under oath, or under a legal equivalent, to make a verified statement. It’s used in many different legal instances, but in divorce, it’s the form that one completes stating that they want to dissolve their marriage. Like with any affidavit, it must be witnessed and notarized before being filed with the court. We at Kalinoski Law Offices have worked with clients to file divorce affidavits before as a necessary part of the process.

When the divorce is amicable and mutual, both spouses will file a divorce affidavit together, typically citing that the marriage is irretrievably broken. When it is not amicable or one party spearheads the divorce, they send the divorce affidavit that states their marriage is irretrievably broken to their partner along with a counter-affidavit. Sometimes, if the receiving party refuses to sign the divorce affidavit, the sending party can wait a year and have a one-year separation divorce. After that year, the party who signed the divorce affidavit can sign an affidavit confirming a divorce without the other’s express written consent.

When Does Someone Use a Counter-Affidavit?

But during this year-long period, the party who did not sign the affidavit can sign the counter-affidavit instead. In it, one party can object to the date of the couple’s separation, and/or the statement that the marriage is irretrievably broken. This will demonstrably affect the divorce proceedings and the separation of marital assets.

How Does Counter-Affidavit Affect a Divorce?

When someone files the counter-affidavit, this can cause several things to happen depending on how someone does so. In any of these cases, it will lead to both parties needing to hire their own divorce lawyer to represent them.

It Can Delay a One-Year Separation Divorce

If they disagree that they should divorce, this can delay the one-year separation clause because the parties don’t agree on the date of separation. If one partner cannot prove the date of separation, it will start from the first point of separation that can be confirmed by the courts. This cannot stop a divorce’s date of separation from being determined. Only one partner is needed to separate from the other to force separation. An attempt to keep a partner from separating can violate criminal laws

It Can Change the Type of Divorce

The counter-affidavit can lead one partner to believe that they need a no-fault divorce. One partner could declare the other partner to be at fault and lead to lengthy divorce proceedings over marital assets, custody, etc.

It Can Affect the Economic Outcome of the Divorce

A party can even use the counter-affidavit to make economic claims that they want to raise or have not yet been resolved. An example would be to confirm the promise or change the agreed-upon amount of spousal or child support if there is doubt. 

This is also where a party can make claims for a specific marital asset or assets that they have not been confirmed to keep. 

How Can Kalinoski Law Offices Help You?

Everyone says that divorce is hard, but they rarely mention the complications with all the paperwork. Not only is Kalinoski Law Offices experienced in handling these situations, but we can answer any questions you have about them. We can prepare the divorce affidavit, the counter-affidavit, and prepare you to counter it. Contact our Scranton divorce law firm to consult about your case.

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