Of course you can. It is almost always the case that when you file an answer to the divorce petition you also file a counter-petition for dissoultion of marriage. Any loans against a marital assets should only be done with the approval of both parties. The holder of the 401(k) may even require the consent of the spouse in writting. An experienced family lawyer should be able to protect you from your spouse raiding marital assests during these proceedings.
If you have been served with their petition, make sure that you file an Answer within 20 days. You can file a Counter-Petition and ask the court to prevent him from dissipating any marital assets during the pendency of the case.
Your best bet is to contact a family law attorney in your area as soon as possible.
You would want to file a counter-petition, not a second case. The #1 reason to file a Counter-Petition is to make sure that the case continues on track regardless of whether the other spouse will drop his/her case, forcing you and he/she to start up all over again.
Not only is the fee for a Counter-petition less than the filing fee for a new law suit, but you do not have to incur the expense of serving your spouse.
Whether or not you file a Counter-petition, you can start conducting discovery, now, if their are children start formalizing time- sharing, and becoming more proactive in the case.
I hope you found this response to be of assistance. This response shall not be considered the rendering of legal advise but instead a general response to a general question. While Avvo is a wonderful resource, nothing can be a substitute for an in-depth consultation with an attorney in the jurisdiction in which the law is to be applied. This response shall not be deemed to create an attorney-client relationship, nor shall it create an obligation on the part of the attorney to respond to further inquiry from the questioner.
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