The steps required to get a divorce vary depending on the circumstances of the parties involved. It is probably obvious but divorces involving no children and few assets are much simpler and usually faster than divorces involving children and lots of property to divide. Also, the process is more simple and quicker if the parties can agree on issues involving children and property ahead of time. A divorce where the parties are fighting and disagreeing over everything always takes longer and is usually more expensive.
The following steps are similar in most divorce cases:
Filing a Divorce Complaint or Petition.
The first step in the official divorce process is filing a complaint or petition with the court. Even where both spouses agree that they want to get divorced, one of them will need to file with the court. The grounds for divorce vary depending on the state but almost all jurisdictions provide for some form of no-fault such as “irreconcilable differences.” A few states still consider fault such as adultery or abandonment. A good divorce lawyer can tell you whether or not you need to allege fault and whether or not it helps to do so.
A Court May Issue Temporary Orders.
Temporary orders may be requested by one of the parties if they need financial support or will have custody of the children. As an example, if a wife files for divorce, she may need financial support from her husband to continue paying the household bills. She will also need a temporary custody order and a temporary child support order for the kids. Temporary orders remain in effect until the final court order is issued.
Service of Papers on the Other Spouse.
The party who files for divorce will need to have the divorce papers served on the other spouse. This can be done by agreement or a person who serves papers can be hired to personally deliver the papers to the other spouse. Once, this is done, a proof or affidavit of service needs to be filed with the court. If the parties have attorneys, the service of papers can often be done between the attorneys. This is usually preferred rather than trying to serve the other spouse at their place of employment or other public place.
Filing an Answer or Response.
The party who is served with papers will then need to file a written response or answer. When a divorce is filed on the basis of fault, then the responding party will need to decide if they want to refute the claims. If so, this will need to be done in the written response. Also, if the responding party disagrees with the requested property division, child support, custody arrangement, or any other issue, this should be set out in the written response. It is rarely wise to file a written response yourself without assistance or review from a good divorce attorney.
Resolution of Issues by Mediation or Negotiation.
The court system always encourages parties to negotiate and try to resolve their differences without court involvement. The court can schedule settlement conferences to assist the parties in moving towards a final settlement. If the parties disagree on child custody and visitation, the court may also order mediation, evaluation of the children and parents by a social worker or other court employee and that a lawyer or guardian ad litem be appointed to represent the children. Other issues that may need to be negotiated are the property division and any spousal support.
If the parties simply cannot resolve certain issues between themselves (and their lawyers) then a trial will be scheduled. However, going to trial will take longer, cost more money, and have less predictable results so it is usually best to avoid going to trial if possible.
Order of Divorce or Dissolution.
A court order or decree of divorce gives legal sanction to the official end of the marriage. The court order should spell out how the property and debts are to be divided, who has custody of children, child support and any other issues. If the parties negotiate their own resolution to all of the issues, one of their attorneys will prepare and submit a final divorce order or decree to the court. If the order meets with the approval of the judge and both parties entered into it knowingly and willingly, then the judge will approve it. Otherwise the court will issue an Order at the end of the trial.
Issues in divorce can get complicated. You are almost always better served by using a good divorce attorney than by going it alone. Call us to day and we’ll be happy to answer your questions.