What Does the Process of Divorce Look Like?
If the idea of getting a divorce has crossed your mind, and you’re feeling a bit lost about how to get started, know that you’re not the only one in this situation. Divorce is far from being a simple matter, it’s complex and demanding. Every divorce follows a basic path. The process begins with filing the initial Petition for Dissolution of Marriage. It then concludes with obtaining a final Judgment for Dissolution of Marriage. However, it’s the journey in between that can be hard to understand. Questions like where to file your case and how to ensure your spouse receives the divorce papers can be confusing. This article will break down the entire divorce process step by step. It will cover everything from handling complex paperwork to managing unexpected situations that might come up along the way.
Keep in mind this article is intended to give you an overview of the divorce process. Specifically, it centers on you as an individual performing the work. But if you have children, assets, debt, and your marriage has been a long term one, it’s SAS’ advice that you seek legal counsel BEFORE you embark on the divorce process alone. Before initiating any legal proceeding or commencing the division of assets, you will want to understand your rights. This includes your entitlements as a woman and, possibly, a mother. The old adage “you don’t know what you don’t know” rings particularly loud when it comes to divorce. You must consider and prioritize your future financial well-being.
The Divorce Process: Filing the Petition
In a divorce case, the first legal document you file is known as a Petition for Dissolution of Marriage. Each state has its own rules, but generally, this document must include details about you and your spouse, when and where you were married, why you want a divorce, information about your children (if any), how you plan to divide property, and proof that you live in the county where you’re filing the divorce. The party who files the divorce is called the Petitioner, and the party being served with the divorce is known as the Respondent.
To get the ball rolling, you submit the Petition to the Court that handles divorces in your county. For most states, filing requires residing within the state for a minimum of 90 days, and many mandate a separation of at least 6 months from your spouse before divorce filing. If you’re handling the divorce by yourself, without a lawyer, make sure you know what your state needs in the Petition and how to file it. Many states let you file online through an e-filing system, or you can do it in person at the courthouse. Each court has its own fees for filing your case but if you can’t afford the filing fee, you can request a fee waiver. Consider your situation and choose the option that works best for you.
Serving Your Spouse
After filing, you should formally provide the Petition to your spouse. This is to let them know about the divorce, and this shows the court that you’ve provided them with notice. Alongside the Petition, a Summons will need to be given to your spouse. The Summons tells them about the filing, when the court date is, and how to respond. If your spouse intends to participate in the divorce, formal notice might not be necessary. If you personally give your spouse the divorce papers and they respond, that’s sufficient. Your spouse will respond by filing an Appearance, which notifies the Court that they plan to be fully involved in the divorce process. If your spouse is uncooperative, the situation may necessitate formal service.
Service by a Third Party
Your spouse can receive divorce papers from a sheriff or someone who can deliver legal documents, like a special process server. Having your spouse served this way will eliminate the possibility of your spouse saying they weren’t properly served. The sheriff or process server will then provide you with proof of when and where they served your spouse, which you can show to the Court.
Service Through Publication
If you can’t find your spouse or the sheriff is unable to serve them, you can use a method called service through publication. This means putting a notice in your local newspaper in an attempt to inform your spouse about the divorce. You can only use this method if you’ve made a diligent effort to find your spouse and the Judge issues a signed Order allowing you to publish the notice in the newspaper. Once the Court allows it, you’ll contact the newspaper, fill out any required forms, and pay a publication fee. After publishing the notice, you will receive a certificate of publication as evidence that the newspaper has notified your spouse. If your spouse can’t be found even after this or they refuse to respond, you might be able to proceed with a default divorce.
A default divorce allows the court to grant you a divorce without your spouse’s input or participation in the case. In this scenario, the court’s ultimate judgment is based solely on the information you’ve provided, without taking your spouse’s perspective into account. This course of action requires substantial evidence demonstrating your diligent attempts to involve your spouse in the case.
To initiate a default divorce, you would draft and file a Motion for Default. This document informs the court about your sincere efforts to engage your spouse in the process, despite their unresponsiveness. You’ll also need to draft and file a Notice of Motion. This formal notice informs your spouse about your intention to present the motion to the Judge. You then deliver both the Motion and the Notice to your spouse, to the best of your ability.
When the court date arrives, if your spouse doesn’t appear, the Judge might issue an Order of Default. This means the court will proceed with finalizing the divorce based on the information you’ve submitted. A default divorce will only occur when your spouse cannot be located or declines to participate in the case.
The Initial Hearing in a Divorce
Once you file the Petition and serve your spouse, the court will schedule an initial case management hearing. This hearing aims to address the filed Petition for Dissolution of Marriage and address any immediate marital matters. These may include creating a parenting plan for your children, deciding on temporary financial support for you or your children, or determining the usage or restrictions on joint assets and property. The Judge might issue temporary rulings on these matters, or they could schedule a continuance to establish a new hearing date for resolving these issues.
The Discovery Phase
The discovery process typically begins with each party drafting Interrogatories and a Request to Produce, which are then served to the opposing party. Interrogatories enable you to formulate a series of written questions that the opposing party must answer in writing and under oath before the trial. This process helps you gather relevant information from your spouse, strengthening your case’s arguments. On the other hand, a Request to Produce asks the opposing party to provide documents relevant to the case’s issues, such as the parties’ assets, income, or debts. In cases where both parties have limited income or assets, Interrogatories and Requests to Produce may be unnecessary. You might proceed by exchanging a Financial Affidavit, a document used by the Court to assess your income, expenses, assets, and debts.
The Financial Affidavit
Typically, the court will require both parties to complete and exchange Financial Affidavits. These affidavits offer the Court and the involved parties insight into each spouse’s financial situation. The Financial Affidavit serves as an important tool in navigating the divorce process, as it influences decisions regarding spousal support, child support, and property division. It’s very important to be entirely truthful and precise while completing the Financial Affidavit. You’ll need to provide supporting documentation like proof of income, bank statements, and income tax returns to corroborate the reported financial details. By presenting this information, the Financial Affidavit provides the Judge with a comprehensive understanding of the case and the financial positions of the parties involved.
Try to Reach a Settlement
Regardless of whether you’re represented by an attorney or navigating the divorce process on your own (pro se), it’s in your best interest to achieve a settlement agreement with your spouse that the Judge can approve. Resolving matters outside the courtroom accelerates the divorce process and proves more cost-effective than presenting issues to the Judge for argument and decision. If both parties have legal representation, your respective attorneys can organize a meeting where both sides can discuss their needs and preferences.
This collaborative approach aims to establish an arrangement that benefits both parties and their children. If neither side has legal representation and achieving a settlement seems challenging, a mediator can provide assistance. Opting for mediation tends to be less expensive than going to trial. The mediator’s role is to foster communication between you and your spouse and help create a voluntary agreement. By achieving a settlement with your spouse, you can avoid hefty financial burdens, numerous court dates, and the stress associated with a trial.
Going to Trial
If you are unable to reach a settlement with your spouse, you will have to go to trial. See “What the Difference Between an Uncontested and Contested Divorce?” During the trial both sides will argue their case and present any evidence or witnesses they have that aid their argument. The Court will hear both sides, examine all evidence and issue a ruling in line with state laws.
The Prove Up hearing marks the finalization of your divorce, where the Judge approves a Judgment for Dissolution of Marriage. During this hearing, you and your spouse will be asked a series of questions that correspond with the initial Petition for Dissolution of Marriage. If the Court finds everything it heard satisfactory, it will grant the dissolution of the marriage and sign the Judgment. This document should outline the settlement terms, potentially incorporating an Agreement you and your spouse have drafted and signed.
In cases involving children, you may need additional documents such as a Parenting Agreement or a Uniform Order of Support that specifies spousal and child support. Once the Judge signs the Judgment, you will receive a copy. If your spouse isn’t present at the hearing, you’ll need to send them a copy and submit proof to the Court that you have done so. With the signed Judgment, your divorce becomes official.
Navigating a divorce can be extremely challenging, but there are strategies to simplify the process. Consulting with a lawyer to share your situation can provide insights into the upcoming journey. Many attorneys offer free initial consultations. Accessing free or reduced-cost legal assistance through local Legal Aid organizations is also an option. Conducting individual research to understand the divorce process better is another avenue worth exploring. You may wish to consult with a divorce coach who can help you understand the right process and steps for you. While divorce is undoubtedly demanding, it’s crucial to remember that you’re not alone, and a wide range of options exists to help you comprehend and cope with this intricate process.
Teresa Simmons is a third-year law student in Chicago committed to advocating and supporting survivors of gender and power-based violence. With a longstanding interest in family law, she aspires to pursue a career in this field after graduation. Her goal is to create a meaningful impact by being a voice for those who may struggle to find their own, providing the necessary support and empowerment they need to navigate the legal system and achieve justice.
Since 2012, SAS for Women has been entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. Join our tribe and stay connected.
*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”