Can the plaintiff sue for divorce without appearing in court in the first instance? Can the defendant counterclaim if the plaintiff in the divorce case does not appear in court?
After the parties entrust an agent ad litem (lawyer) and issue a power of attorney, they may not attend the trial in court. However, there are a few exceptions: Article 109 of the newly revised Civil Procedure Law in 20 12 stipulates that the defendant who must appear in court may be summoned twice and refuse to appear in court without justifiable reasons. The so-called "the defendant must appear in court", "the Supreme People's Court on the application; People's Republic of China (PRC) Civil Procedure Law; Article 1 12 of the Opinions on Several Issues clearly stipulates that the defendant who must appear in court refers to the defendant who has the obligation to support, support and support, and cannot find out the case without appearing in court. Article 62 of the Civil Procedure Law stipulates that if there is an agent ad litem in a divorce case, I shall still appear in court unless I cannot express my will.
As can be seen from the above, the Civil Procedure Law has made special arrangements for lawsuits involving identity relations, because personal rights are closely related to the person of the parties, especially marriage relations. If I don't attend the trial, the judge often can't find out the facts of the case on substantive issues such as whether the relationship between husband and wife really breaks down. In order to better protect the legitimate rights and interests of the parties, but also for the smooth progress of trial activities, the law has this setting.
So does the law allow exceptions? If the original and defendant in a divorce case are really unable to participate in litigation activities for objective reasons, can they get legal "mercy"?
The answer is yes. Article 62 of the Civil Procedure Law stipulates the obligation of the parties involved in divorce proceedings to appear in court, and at the same time allows exceptions, that is, if the parties are unable to appear in court due to special circumstances, they must submit written opinions to the people's court. However, the "special circumstances" laws here are not clearly defined, and the relevant judicial interpretations have not explained these "special circumstances". In judicial practice, it is usually judged that it is really difficult for witnesses to testify in court according to legal circumstances. The legal situation that a witness cannot testify in court refers to:
1, old and weak or unable to appear in court;
2. Leave the special post if you really can't;
3, the road is particularly long, the traffic is inconvenient, and it is difficult to appear in court;
4. Unable to appear in court due to force majeure such as natural disasters.
Second, what should I do if the defendant does not appear in court?
In recent years, divorce dispute cases are on the rise, and the phenomenon that the defendant does not appear in court in divorce dispute cases also occurs from time to time, which is mainly manifested in two situations: first, the defendant cannot be found and does not appear in court; Second, the defendant can be found, but the defendant deliberately avoided appearing in court. Because China's civil code stipulates that mediation is the necessary procedure for people's courts to hear divorce cases, the defendant does not have the conditions and possibilities for mediation without appearing in court, which makes it difficult for people's courts to hear cases and judge divorce, and even directly judge that divorce is not allowed in some cases. Lawyers believe that if the defendant does not appear in court, it is unfair to the plaintiff and indulges the defendant, which is not conducive to the stability and development of a harmonious society. If the defendant fails to appear in court in a divorce case, he shall be sentenced by default according to legal procedures according to different circumstances.
At this time, the judge will not make a divorce judgment because the defendant does not appear in court. In the case that the plaintiff provides corresponding evidence, the judge will also make a divorce judgment on the case. This is a default judgment, which may be unfavorable to the defendant. Therefore, I suggest that you attend the proceedings on time after receiving the divorce summons from the court.
What are the consequences of the defendant's failure to appear in court in divorce cases?
1, not attending the trial, dividing the property and losing money.
In divorce cases, if the defendant does not attend the trial, it is equivalent to losing the right to speak and may suffer losses in the division of property.
For example, if a husband and wife have a house, the court will generally rule that the house belongs to the party who appears in court, and the party who appears in court will give the party who does not appear in court the corresponding economic compensation. Because houses have room for appreciation, most people want to buy houses and compensate them.
In addition, the court will generally adopt the plaintiff's opinion on what personal property the two parties have and what they have in common.
2. If you refuse to accept the division of property, you can't sue alone.
If the defendant thinks that there is an error in the division of property after the judgment takes effect, he can only appeal within the statutory time limit and cannot sue separately. If, after the judgment comes into effect, the defendant thinks that some property has not been disposed of in the previous lawsuit, he can sue for supplementary division of these properties on the grounds of property disputes after divorce.
In divorce cases, compared with the plaintiff's failure to appear in court, the defendant usually does not appear in court. If the plaintiff does not appear in court, the prosecution shall be dismissed and the defendant may file a counterclaim. That's all I've told you about whether the plaintiff can counterclaim if he doesn't appear in court. If in doubt, you can consult a lawyer.