Q: Can filing an amended petition in my divorce case be considered a surprise?
After my wife initiated the divorce proceedings, I quickly responded with a general denial and a Counter Petition that I found online, as I was eager to avoid a default judgment and have a say in the division of our marital estate.
Currently, we have a pre-trial conference scheduled in about six weeks, with mediation or trial yet to be determined, and we are still in the process of discovery.
Now that I have gained some additional knowledge (though I plan to hire a lawyer in the next month or two, hopefully sooner), I wish to submit an amended petition. The amended petition will include a specific ground for divorce, reasons why I should receive a larger share of the assets, and a request for post-divorce support or maintenance.
Would such an amendment be considered a surprise by the other party, potentially requiring me to obtain the Court's permission before filing the amended petition?
A: Unless there is already a scheduling order in place which imposes a pleading deadline, you generally can freely amend your counter-petition up to seven days before your trial setting. Ordinarily, a court must allow you to amend your pleading, but may grant a continuance to avoid surprise or unfair prejudice to the other party. Amending your petition base don additional knowledge gained through further investigation and discovery is exactly what our Rules contemplate.
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