Divorce Process Facts and Tips
Filing for Divorce
Divorce begins when a divorce petition, or complaint, is filed. The divorce petition is a formal complaint, typically put together by one spouse with the help of a divorce lawyer. It's filed with the divorce court and then served on the other spouse. The divorce petition usually must be filed in the county of residence of the person filing for divorce regardless of where the couple was married. The spouse who files the divorce petition is known thereafter as the petitioner, and the other spouse as the respondent. These roles don't change, even if the respondent later files a petition against the original petitioner to resolve an issue related to the marriage.
The divorce petition asks the divorce court to grant a divorce or dissolution based on a particular reason. In no-fault divorce, the reason stated is often "irreconcilable differences." The divorce petition must also identify the spouses, any children and the issues of the divorce. The petitioner states in the divorce petition his or her wishes regarding child custody, child support, alimony, property division and other marital issues, asking the court for an order granting the requests.
Service of the Petition
Oftentimes, a third party, such as the sheriff's office, accomplishes legal service of the petition, or complaint. Process service may be handled by the local sheriff's office or served by an independent process server. If both parties agree, in some cases service of the divorce petition may be handled by mail, if the respondent signs a receipt acknowledging service. Once the divorce petition has been served, the respondent usually has about 30 days to answer the divorce petition. Service of the divorce petition helps establish the date of separation and starts the divorce process. The date the divorce petition was served also marks the start of any waiting periods that may be a requirement for divorce.
Filing an Answer or Appearance
The respondent, or defendant, generally has 30 days to answer or file a response. A failure to respond within the time allowed means that the party is considered in default and may forfeit his or her rights to contest issues such as child custody or property division. When a respondent fails to file a response, the divorce court assumes he or she is in agreement with the divorce petition and grants the petitioner's requests.
Moving Forward with the Answer
An answer, which is called a response, acknowledges the filing and receipt of the petition, or complaint. In it, the respondent replies to any allegations or requests by the petitioner. The response may be in agreement or in objection to the petitioner's requests. The answer may also agree with some parts of the divorce petition and disagree with others. If the couple agrees on all issues, the respondent may simply file an answer indicating agreement, which allows the petitioner to go forward with an uncontested divorce. The respondent may want to consult with a lawyer about the response.
An Effective Answer
In the answer, the respondent, or defendant, should clearly agree or disagree with the position on each divorce issue and provide an explanation if necessary. The respondent may also make demands in the answer to the divorce petition. In some states, forms may be provided to simplify answering a divorce petition. These forms often contain a list of issues, so the respondent may check off whether he or she agrees or disagrees with each issue.
In contested divorces, discovery becomes the heart of the action. Discovery permits the spouses to gather detailed information from each other about assets, income, fitness for child custody, extramarital affairs and any other issue relevant to the divorce. Discovery is normally very expensive because it consumes hours and hours of a lawyer's time. The spouses exchange relevant information as required by the rules of procedure. If a spouse resists turning over relevant information, he or she can be compelled by court order.
After the divorce petition and answer are filed, some jurisdictions require a waiting period so that the parties may cool off and make certain they want to end their marriage. Divorce waiting periods vary from state to state. In the past, states have considered extending divorce waiting periods, especially for couples with children. Such divorce legislation has been based on observations that shorter divorce waiting periods lead to higher divorce rates.
Courts normally push divorcing spouses to settlement because litigation between spouses antagonizes the parties, harms the children and drives up costs. Couples who can get along well enough to hammer out an agreement find that this approach can dramatically speed up the divorce, minimize the stress on the children, and cuts costs. The decision to settle is always up to the spouses not their lawyers.
When divorcing spouses cannot reach an agreement, the court schedules a trial. In a trial, the spouses get to tell their stories, call witnesses, and cross-examine the other spouse's witnesses. A judge - who has heard it all before, as they say - makes a final decision. After the trial, a final divorce decree is entered resolving all of the issues in the divorce. A losing party can appeal the divorce decree.
Litigation a Course of Last Resort
A divorce trial should be a course of last resort because it is here spouses make war on one another, and when it is over, they will leave the battlefield with lasting hatred of one another.
State Divorce Law
Divorce in the United States is governed by state-specific laws. Normally, divorcing couples file for divorce in the county of the residence. They need not file in the state where they were married. All states honor the marriages and divorces of sister states.
Residency Requirements to File
Normally, a person must be a resident of the state where the divorce is filed. State residency requirements range from 90 days to one year.
Two Types of Divorce
Courts in the United States recognize two types of divorces: absolute divorce, known as divorce a vinculo matrimonii (divorce from the bond of marriage) and limited divorce, known as divorce a menso et thoro (a divorce from table and bed). A divorce a vinculo matrimonii is an absolute divorce, the judicial termination of a marriage that makes both spouses single. A divorce a menso et thoro is a limited divorce typically called a legal separation.
Filing for a Conversion Divorce
Limited divorces result in termination of the right to cohabit but the court refrains from officially dissolving the marriage and the parties' statuses remain unchanged. The spouses are still married. Some states permit conversion divorce. Conversion divorce transforms a legal separation into a legal divorce after both parties have been separated for a period of time defined by state statute.
All jurisdictions now have no-fault divorce statutes. No-fault divorce statutes do not require showing spousal misconduct. In these actions, the court must only find 1) that the relationship is no longer viable, 2) that irreconcilable differences have caused an irremediable breakdown of the marriage, 3) that discord or conflict of personalities have destroyed the ends of the marital relationship and prevents any reasonable possibility of reconciliation, or 4) that the marriage is irretrievably broken.
State law determines whether a state divides and distributes the martial estate under the terms and conditions of equitable distribution or as community property. State law also determines whether property is either marital or separate or whether all property is subject to distribution. Nine states are said to be community property states, which means that the entire marital estate is subject to distribution; 41 are said to be equitable distribution, which means that the marital estate is distributed equitably.
Until the 1970s, all jurisdictions required proof of marital fault as a condition of divorce. Marital fault means that at least one partner is guilty of marital misconduct that may be, but is not limited to, adultery, deviant sexual conduct, extreme cruelty or inhuman treatment, habitual drunkenness, mental illness, imprisonment, sexual desertion, drug addiction, or nonsupport. Each of these terms is defined by different jurisdictions in different ways, and the legal definition may be very different than the lay conception of it. The decision to use marital fault as grounds for divorce in lieu of no-fault requires sound legal advice.
Equitable Division (Distribution)
Equitable distribution is the regime used in 41 states and the District of Columbia for dividing property acquired by spouses during their marriage. Equitable does not mean "equal"; it means that assets acquired during a marriage are subject to distribution fairly. In many cases, fair means what a judge says is fair. Each state sets forth mandatory factors a judge must consider in making an equitable distribution, including (in most states) 1) the length of marriage, 2) the age, health, and occupation of the parties, 3) station in life and lifestyle of the spouses, 4) liabilities and needs, 5) tangible and intangible contributions of the parties to the marriage, 6) assets and liabilities, sources and amounts of income, 7) behavior of the parties during the marriage, and 8) vocational skills and employability.
Community property states treat all income or property that was acquired during the marriage, with the exception of gifts or inheritances, as belonging to both partners. Each spouse has an undivided one half interest in the whole asset, regardless of whose name is on the title. The nine community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
A divorce proceeding in which there are no disputes does not mean that the parties agree on everything. It means that the spouses have decided to work out their differences themselves rather than have a judge do it for them.
When an Uncontested Action Works
Uncontested actions work well when the parties behave rationally and control their own worst impulses, including greed, revenge and selfishness. Remember, as one veteran lawyer said, "Criminal lawyers see bad people at their best, and divorce lawyers see good people at their worst."
The Advantages of Uncontested Actions
Not only does an uncontested divorce move through the system more quickly, it is much less complicated, does less emotional damage, and costs less than a contested action that goes before a judge who decides for the spouses what they cannot decide for themselves.
Disadvantages of Uncontested Actions
An uncontested divorce does not work in high-conflict marriages where there is domestic violence. An uncontested divorce works best when both parties can openly communicate with each other.
Cost of an Uncontested Action
Uncontested divorces can cost anywhere from a few hundred dollars to $1,200. The fee may depend on how much time the attorney will have to devote to the case. If there are unresolved issues that must be worked out, the cost could increase.
Pro Se Divorce
An uncontested divorce lends itself to a pro se action, which is a divorce in which each spouse represents himself or herself in court without a lawyer. Pro se divorces work easily to terminate a short-term marriage that is childless, with both spouses working, easily distributed assets and easily settled debts.
One Lawyer - One Client
No matter how agreeable the spouses are, each party must have his or her own lawyer. Legal ethics require that a single lawyer cannot represent both parties. The lawyer must represent one or the other spouse, and he or she needs to know this at the outset.
Couples who cannot agree have what is called a contested divorce, an adversarial action where at least one issue has not been settled. Often, couples begin the process of a contested divorce and then, before the trial, reach agreement. This is called a settlement. One of the biggest advantages of a settlement is that neither spouse will appeal it because both are presumably satisfied with it and can, therefore, be assured of finality and an end to litigation.
Forms of Uncontested Actions
An uncontested action can happen summarily, by default (where one spouse files and the other does not respond), through mediation (where the couple use a trained mediator), or by collaboration (where the couple actively cooperate with each other and lawyers are negotiators). The case can move on, and the time between filing and the judgment of divorce varies by jurisdiction from a few weeks to a few months.
Pro Se Filing
Pro se divorce litigation means that the petitioner, or plaintiff, represents himself or herself in a divorce without an attorney. The procedures are the same for a pro se litigator except that he or she is responsible for filling out and filing all the legal forms. People file pro se because they can't afford to hire an attorney, or they agree with their spouse about all divorce issues and can file uncontested, or they become dissatisfied with their lawyer and feel they could do a better job on their own.
Off to the Law Library
Anyone who wants to do his or her own divorce should make a stop at the law library. Divorce law is state specific, and practices vary from jurisdiction to jurisdiction. In a divorce, the only dumb question is the one that went unasked.
Keeping Emotions in Check
Anyone who cannot separate the emotional strum und drang of divorce from the cool legalism of it should not attempt to do his or her own divorce. Pro se divorce is not for settling the score.
Pro Se is Less Costly
Without a doubt, one of the biggest draws about filing pro se is cost. A simple uncontested divorce with legal representation costs $1,500 to $2,000. By comparison, a pro se divorce can be had for under $300, plus court costs and filing fees.
A Pro Se Divorce Must be Uncontested
No one should ever file pro se in a contested divorce. Disagreements about property division, child custody, and support must be solved before anyone attempts to do his or her own divorce.
A summary divorce is designed for people who want to do their own divorce without costly lawyers. This streamlined divorce is both simpler and faster because it involves less paperwork, fewer or no court appearances and less time lost to negotiations. Many states offer the summary or simplified divorce to couples that meet certain requirements, usually including a short marriage, no minor children, no significant property, and the forfeiture of support. The couple files as co-petitioners and the action moves through the courts administratively.
One of the most popular ways to do a pro se divorce is an online divorce. Online divorce requires completion of questionnaires that will provide all the information required in the jurisdiction of filing. Some online companies mail the divorce paperwork back; others return it online. It is then the petitioner's responsibility to file the paperwork in his or her local court. Doing a divorce online generally costs around $300 plus court fees - a considerable savings against the cost of retaining the services of a lawyer.
Pro Se Divorce is Not an Arms Race
Pro se filing works when both spouses agree to it. This means that neither spouse retains a lawyer to do negotiations. Both spouses can use lawyers to review paperwork, but the involvement of lawyers in pro se filing must not be adversarial.
Pro Se Filing is Not for Everyone
Couples with minor children, large marital estates, or complicated finances, such as pension distributions, should not attempt to do their own divorce. Complicated divorces, even when they are not contested, simply have too many opportunities to make mistakes that can be costly to correct. As a rule, in these cases, it is best for both spouses to retain lawyers.
Useful Online Tools
Resources & Tools
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