Divorce processes can vary from case to case, depending on the parties involved. Though some can be long and complicated, others can be fairly straightforward. Understanding the process of how to file for divorce can help prevent unnecessary delays and complications. Before you begin the process, be prepared by learning the basics of what steps you will need to take.
Before you get started, you must first determine residency and where to file. Most states require that you or your spouse have resided in the state in which you’re planning to file for at least six months. Some states also require three-month residency within the county where you’re filing. The residency requirements can differ from state to state so make sure you do a search of your state’s specific conditions.
Reason for Divorce
All fifty states are no-fault divorce states, though some states still provide the option to allege fault if desired. “No fault” means that only one spouse needs to file a petition, and they may do so without filing a fault-based complaint. The filing spouse may claim “irreconcilable differences” and can have the marriage or domestic partnership dissolved, regardless if their spouse consents or not.
Some states require a separation period before you can file for divorce. States such as Oregon and California don’t require such a period of separation. As each state has different requirements, it’s best to look up these specifications.
Filling Out Forms
Now that you have determined the requirements for filing, the first step is preparing the necessary documents. Often, domestic relations law provides two types of dissolution. The simplest procedure is summary dissolution, which is an uncontested divorce. The other is complex dissolution, which means the divorce is contested.
If your marriage or domestic partnership has limited issues, you may be able to file for a summary divorce. Some of the requirements include:
- Being married for 10 years or less
- Neither spouse is pregnant
- No minor children involved
- No real estate owned
- No more than $15,000 in debt
- Personal property values less than $30,000
- Petitioner waives the right to alimony and temporary orders
If you don’t meet these requirements, you’ll have to file for a complex dissolution. Depending on which dissolution you choose, each requires specific forms. If you and your spouse have biological or adopted minor children, additional forms will be required.
Regardless of which procedure you use, your documents must include a petition for divorce and a summons. The petition for dissolution will outline for both the judge and your spouse what you’re asking for in the divorce. The summons is a document notifying your spouse that they need to appear in court. It also includes instructions prohibiting moving out of state with joint children and written consent required for obtaining passports for the children.
Reviewing All Forms
It’s imperative your forms are reviewed for accuracy. Though the court may have resources to help you review these forms, you may want to consider working with a family law attorney. If your forms are not in order and any of the information is inaccurate or incomplete, this can affect the outcome of the divorce.
Making sure that you have all the necessary forms to successfully file for divorce can be difficult without help. Each case has its particular needs. Do you require alimony? Division of property? Child custody? A do-it-yourself approach may affect the outcome in an undesired way. If you need legal advice and representation, contact our expert team at Warren Allen LLP. Our experienced family law lawyers are able to help with your unique situation and needs.
Once your documents have been thoroughly reviewed, it’s time to file them in the appropriate county. Turn in the petition for dissolution with the Circuit Court Clerk’s office in the county where you or your spouse resides.
When doing so, you must also pay any fees associated with filing for divorce. If you cannot afford the fees, it’s possible to ask the judge to waive or defer the fees. However, you’ll have to fill out court papers documenting a low income.
Serving the Forms
Unless you’re filing for divorce with your spouse as co-petitioners, the law requires you to inform your spouse of the intended divorce. This is done by serving your spouse with copies of the divorce petition as well as all other paperwork filed with the court. This can be done by mail or by personal service.
Personal service doesn’t mean that you can personally hand the papers to your spouse. They must be served by another adult over the age of 18. Once the papers have been received, your spouse signs a “Proof of Service” or “Acceptance of Service” form (depending on the state). If your spouse refuses to sign, you can hire a private process server or pay a fee for the county sheriff to deliver them in-person.
If your spouse is difficult to locate, you can obtain an order signed by a judge that allows you to publish or post a notice that you have filed for divorce. This may include posting in the courthouse or publishing in a newspaper.
Finalizing the Divorce
After your spouse has been served, there are various options they can take. Your spouse can default, which means they do nothing, or they can file a response agreeing or disagreeing with the terms of the divorce. They have 30 days to file a response with the court.
If your divorce is uncontested, you can write up an agreement outlining the terms and fill out final forms to be submitted to the court.
If you cannot reach an agreement on the terms or your spouse contests the divorce and a compromise through mediation cannot be reached, you must ask the court for a divorce judgment. A trial date will be set and, ultimately, a judge will determine the terms of the divorce.
Having an understanding of how to file for divorce will help, but ultimately, a knowledgeable family law lawyer on your side will better ensure a smoother dissolution and potentially help you achieve your specific needs.