Understanding the Divorce Process
Brette Sember
Legal content thought leader/editor.
The legal process for a divorce involves many forms and steps. Knowing what to expect beforehand can help.
Residency Requirement
To qualify to file for a divorce, you must first meet your state’s residency requirement. This means that you or your spouse have lived in the state for a minimum period of time, which could range from a couple of weeks to several months, depending on your state laws.
If you do not meet this requirement, you cannot file your divorce until the required time has passed.
Divorce Forms
Each state (and sometimes each court) has its own required forms you must complete to get a divorce. These may include the following:
Petition and/or complaint
Answer, appearance, and/or response
Settlement agreement
Parenting plan
Financial affidavit
Child support worksheet
Affidavit of service
Affidavit of consent
Judgment
Divorce forms are available from your local courthouse, your state’s online court website, an attorney, or an online divorce service. Some states offer a packet with instructions.
How a Divorce Is Begun
A divorce proceeding begins when one spouse (called the petitioner or plaintiff) files a petition or complaint asking for a divorce. This is filed with the court in your county where divorces are handled. The petitioner pays a filing fee (usually a couple of hundred dollars), and the case is assigned a case number.
Once those papers are filed, the petitioner must serve the documents to the other spouse, called the respondent or defendant. You can do this by hiring a process server or having another adult not involved in the case hand them to the respondent. In some states, the local sheriff will serve papers for you. You have a specific number of days to have the papers served on the respondent, and you must file a document that proves service was complete with the court.
The respondent then has a set period of time in which they must respond to the papers by filing an answer, response, or an appearance with the court.
Options for Filing Your Divorce
You could hire an attorney to handle all of the papers and filings.
You could get the forms yourself from your court and file them yourself.
You could use an online divorce service to complete and file the papers.
How to Simplify the Filing Process
The traditional divorce process pits you and your spouse against each other from the start. One person files papers and has a stranger hand them to the other. You then move ahead with the divorce, each fighting for what you want.
If this isn’t how you want your divorce to go, there are solutions.
Simplified Divorce
Some states have an alternative filing process for divorce if there are no minor children, no real estate, few assets to divide, and the spouses agree on all remaining issues. You and your spouse complete and submit the papers for a simplified divorce together. The court reviews and approves them.
Settlement Agreement
If you and your spouse agree on child custody, child support, spousal support, and division of assets and debts, there’s no reason to treat the divorce like head-to-head combat. In this situation, your divorce is uncontested, which means you agree. You can work with your spouse, a mediator, or an online divorce service to complete a settlement agreement. This form is then filed with the court along with all of the other required papers. The court reviews it and approves it. A brief court appearance might be required to complete the process.
Next Steps in a Contested Divorce
If you and your spouse cannot reach a settlement, the divorce will proceed through the court system.
The first thing that happens is that the court issues temporary orders. In some states, these are automatic. They are court orders stating that neither spouse can sell or give away assets during the divorce. Temporary orders can also be requested to set up a temporary custody plan while the case is ongoing and for temporary support as well.
Note: At any point in the divorce process, you can work out a settlement and end the process. You can settle up until the trial concludes. Many divorces start as contested and end up settling.
Trial
If the case does not settle, a trial date is scheduled. At the trial, each side can call witnesses and present evidence to convince the judge to agree with what they are asking for. Each spouse can testify if they want to.
After the trial, the judge issues a judgment which explains what has been decided. This is usually mailed to the parties within a few weeks of the trial.
Conclusion
The divorce process can be quick and relatively easy, or it can be drawn out and complex. Your ability to work with your spouse or to access the help you need to reach a settlement impacts the process.
The simplest way to proceed is to file for a simplified or uncontested divorce yourself or through an online divorce service. Working with attorneys and going to trial is the longer and more expensive option.
