Filing a Pro Se Divorce
Filing an uncontested divorce pro se means that one of the parties does work normally done by a lawyer -- the filing of divorce papers.
As is the case in all divorces, the pro se filer must be sure at least one of the spouses meets the residency requirement of the jurisdiction in which the couple resides. A few states do not have a specific period, but most residency requirements range from six weeks (Nevada) to one year. You must check your state laws, to see what you residency requirement length is. Length of residency, or lack there of, does have the ability to hold up or delay a divorce.
All states now permit divorce either on grounds of no-fault or on grounds of separation, usually for periods of six months (if the parties agree) to two years. These are the most common grounds used for an uncontested divorce.
Some states permit the spouses to file jointly as co-petitioners. When this is not an option, one spouse must file, and he or she is normally called the petitioner or plaintiff. The other spouse is normally called the respondent or defendant. Divorces in some states are referring to as dissolutions or a "dissolution of marriage". In most jurisdictions, actions are filed in the county court, in the office of the clerk of courts with in the family law or domestic relations department.
A trip to the county law library is a good place for the pro se filer to begin if he or she does not plan to use a pro se solution such as an online divorce provider or a divorce kit or book.
The court clerk’s office can provide direction about where to look for information about filing pro se. Many jurisdictions have websites that provide both the forms and instructions for filing pro se. Some jurisdictions offer pamphlets or booklets guiding the pro se filer in a step by step way. Keep in mind that these websites are often a "piece together" of different forms and instructions and often do not provide some of the most important documents, such as the Marital Settlement Agreement.
The divorce paperwork filed by the pro se filer and the paperwork filed by a lawyer is very much the same. So are the steps, procedures, deadlines, and filing fees.
Divorce routines and regimes are similar in all jurisdictions, and even when the format of the forms is different, the forms all take the filer through similar steps.
Montana is a good example because it has a simplified and a summary route to divorce.
Montana is a no-fault state, which means the irretrievable breakdown of the marriage shown by:
Actions are filed in the district court, which is the county court.
The spouse filing the action is the petitioner; the spouse responding is the respondent. When both spouses file jointly under the state’s simplified or summary divorce law, they are called co-petitioners.
Montana permits a summary dissolution of a marriage for couples, provided they meet a number of conditions, as follows:
In this routine, the couples stipulate that they meet all the conditions for the simplified divorce in the Joint Petition. A hearing is held some time after 20 days from the date the Joint Petition is filed. Both spouses must appear. If the couples meet all the required conditions, the district court judge enters a Final Judgment dissolving the marriage.
Without a doubt, a summary dissolution is the least expensive and least problematic way to end a marriage in Montana. A childless couple with few assets or debts who are in agreement about divorce can easily file pro se.
A couple who cannot meet the requirements for a summary dissolution (for example, they have too much debt or too many assets or both) may still file for a Joint Dissolution (no children) or a Joint Dissolution (with children). Like the summary dissolution, these actions are uncontested, and they are within reasonable reach of the pro se filer.
When filing for a Joint Dissolution (no children), the following forms are required:
When filing a Joint Dissolution (with children), all of forms required for a Joint Dissolution (no children) are required, plus the following:
If both spouses attend the final hearing, the Consent to Entry of Decree is not required. At the hearing the judge reviews the case, asks a few routine questions, and then signs the dissolution decree.
Sometimes one spouse files unilaterally.
In this routine, the following forms must be used when one spouse files to end a marriage when there are no children:
Later, the Defendant must file these forms:
A Dissolution of Marriage (with children) requires all of the forms for a Dissolution (no children) plus the following:
So far so good. No legal strategies are required. In both cases of a marriage with children and without children, the Petitioner is filing forms.
Here is where the pro se filer must be careful. The Respondent may be served the divorce papers either by the Sheriff or by mail, but if service by mail and by the Sheriff fail to locate the respondent, or if he or she will not accept service, the Petitioner must make a diligent search for him or her. This involves a good-faith effort to locate the spouse through exhaustive checks of telephone books, friends, relatives, former employers. If this fails, the Petitioner must prepare an Affidavit for Publication of Summons, an Order for Publication of Summons, and a Summons for Publication. The Summons is then published in a newspaper. This is called service by publication.
The court can grant a divorce to a person whose spouse is absent, but the filing spouse may wish to seek legal advice about ramifications of a divorce under these conditions, particularly if there are minor children and questions of child support.
A Respondent who files an Answer within 21 days of the date of service may be preparing to contest the dissolution. Here is caveat for the pro se filer, who should stand back and assess the situation. A contested action takes the case beyond the competence of the pro se filer. Contested dissolutions require all the forms used in uncontested actions, but their trajectory is impossible to predict because both the Petitioner and the Respondent jockey for tactical and strategic advantages in the event the action goes to trial. A Respondent may file a Counter-Petition challenging some or all of the allegations in the Petition. More to the point, the Petitioner now needs a lawyer.
If after 21 days the Respondent has not responded, however, the Petitioner prepares the following documents:
The case can move to a conclusion as a default action.
California’s Summary Dissolution of Marriage lends itself to pro se filing. Also called a simplified or special dissolution of marriage, this summary action is an inexpensive and easy way to divorce for couples who qualify. Like summary actions in some other states, it permits the spouses to file as co-petitioners. Both spouses must be certain they want to go this route, however, because either can change his or her mind during the six-month waiting period between the filing and the completion of the action.
Like Montana, California has conditions.
To qualify for a simplified divorce routine, a couple must meet 12 conditions:
While there are many conditions for a simplified divorce, the procedure is simple. It works as follows:
In addition to the six-month option to change, either spouse may stop the divorce at any time during this period. The marriage ends only if after this six-month period one spouse files a Request for a Final Judgment with the county clerk. Failure to file the Request for Judgment may result in the court dismissing the case. After the judgment is final, neither spouse has any right to expect money from the other (except for what is agreed to in the Marital Settlement Agreement). Both spouses agree to give up certain rights each might have had in a regular dissolution, such as support, the right of appeal, the right to have a court decide any new arrangements. In the event of reconciliation or a desire to use the standard divorce procedure, the couple can stop the action by filing a Notice of Revocation of Petition for Summary Dissolution, again in the same county clerk’s office.
An uncontested divorce requires a Marital settlement Agreement dividing community property (the marital estate) and establishing the terms and conditions of childcare and spousal support.
The basic steps for an uncontested divorce are as follows:
In all cases, the divorce begins with the Petition, the Summons-Family Law, Response and any local forms that may be required by the county court. The Petition, the Summons-Family Law, Response and any local forms that may be required are normally served by a process server and may not be hand-delivered to the other spouse by the Petitioner because he or she is a party to the action. This is called Service of Process. Other forms may normally be mailed to the other party by certified mail.
The Petition, which must be completed in all cases, identifies the Petitioner and Respondent, the date of the marriage, the date of separation, the minor children (if any), makes a declaration of the community and quasi-community assets and debts and states the relief sought. Depending on the situation, other forms may be accompanied with the Petition. For example, if there are minor children of the marriage, the petitioner must file the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and attach it to the petition. The couple may have also already written a Marital Settlement Agreement (MSA), in which case it is submitted as an attachment.
The Summons-Family Law is the Notice of Service of Process. It is the proof of service. It stipulates the manner of service to the Respondent. It gives him or her 30 days to respond and carries with it a warning that failure to respond may result in a default judgment against him or her. The Summons also restrains both parties from removing minor children from the state and dissipating marital assets.
Some jurisdictions do not have summary actions, but do offer fast-track simplified routines that lend themselves to pro se filing.
For example, North Dakota, which does not have a summary divorce, offers a simplified dissolution when:
To file for a divorce using this routine, the Plaintiff must prepare the following forms:
The Summons must be filed even when the spouses agree to divorce.
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