Filing a Pro Se Divorce - Divorce Source

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Filing a Pro Se Divorce

Information Provided by: Divorce Source, Inc.

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:

serious marital discord which adversely affects the attitude of both spouses towards the marriage and no reasonable prospect of reconciliation or
living separate and apart for 180 days prior to the filing.

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:

One spouse or the other has lived in Montana for at least 90 days before the couple files a Joint Petition for Summary Dissolution;
Both spouses agree that irreconcilable differences have caused the irretrievable breakdown, and both agree that the marriage should be dissolved;
The wife is not pregnant and a) there are no children from the relationship, or b) the parties have an agreed-upon parenting plan and child support and medical support have been determined for all children of the marriage;
Neither spouse has any legal interest in any real estate (except the lease on a residence occupied by one spouse so long as the lease terminates in one year and does not have an option to purchase);
There are no unpaid, unsecured debts in excess of $8,000 incurred by either or both parties after they married;
The total fair market value of the couple’s assets is less than $25,000;
The couple have negotiated a separation agreement regarding the division of assets and payment of bills;
Each spouse gives up the right to maintenance;
Both permanently give up the right to appeal the terms and conditions of the dissolution;
Both agree to they do not want any help from the county conciliation court;
Both have read a state pamphlet about summary dissolution;
Both indicate they want the court to end the marriage.

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:

A Joint Petition for Dissolution, which is signed by both spouses;
A Final Declaration of Disclosure of Assets, Debts, Income and Expenses, which profiles the finances of the spouses, individually and jointly;
Request for a Hearing and Order, which sets a date for a hearing;
Consent to Entry of Decree, which certifies agreement with the action by both spouses;
Findings of Fact, Conclusions of Law, and final Decree of Divorce, which also includes the separation agreement of the couple;
Notice of Entry of Decree, which certifies that the decree has been handed down;
Vital Statistics Form, which records the dissolution with the state.

When filing a Joint Dissolution (with children), all of forms required for a Joint Dissolution (no children) are required, plus the following:

A Proposed Parenting Plan, which establishes the terms and conditions of custody and visitation;
A Notice of Filing Child Support Guidelines Financial Affidavit, which stipulates child support;
A Notice and Acknowledgment to Child Support Enforcement Division, which stipulates third-party enforcement of child support.

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:

A Petition for Dissolution, which is signed by him or her;
A Petitioner’s Preliminary Declaration of Disclosure of Assets, Debts, Income and Expenses, which is a profile of his or her finances;
A Summons, which puts the respondent on notice of the action, and a Temporary Restraining Order, which prohibits the parties from dissipating financial assets subject to distribution.

Later, the Defendant must file these forms:

A Notice and Acknowledgment of Receipt of Summons and Petition for Dissolution;
A Praecipe, which directs the Sheriff to deliver the divorce papers.

A Dissolution of Marriage (with children) requires all of the forms for a Dissolution (no children) plus the following:

A Proposed Parenting Plan, which describes the terms and conditions of custody and visitation;
Notice of Filing Child Support Guidelines Financial Affidavit, which describes child support;
Notice and Acknowledgment to Child Support Enforcement Division, which stipulates third-party enforcement of child support.

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:

Findings of Fact, Conclusions of Law, and final Decree of Divorce;
Request of Entry of Default, Application for Default Judgment, and Waiver of Final Disclosure Requirements;
Entry of Default, which orders the Default Judgment;
Request for Hearing and Order, which sets the final hearing;
Vital Statistics Form, which records the dissolution with the state.

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:

Completion of a Summary Dissolution Booklet provided by the court clerk.
Be married five or fewer years.
Have no children born to them before or during the marriage.
The wife must not be pregnant.
The spouses may have no natural or adopted children.
Neither spouse may have an interest in real estate.
Their community property may not be worth more than $25,000, not including car and car loans.
The community obligations are less than $5,000, not including car and car loans.
The husband and wife have prepared a signed agreement dealing with the terms and conditions of the division of possessions and debts.
Both spouses have signed a Joint Petition for Summary Dissolution of Marriage.
Both spouses want to end the marriage because of serious and permanent differences.
Both spouses agree to use the summary dissolution rather than the regular dissolution.

While there are many conditions for a simplified divorce, the procedure is simple. It works as follows:

Both spouses file the Joint Petition for Summary Dissolution of Marriage with the county clerk.
Both spouses wait six months.
Either spouse files the Request for Judgment, Judgment of Dissolution of Marriage and Notice of Judgment with the same clerk.
The court grants the divorce without a hearing.

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:

File a petition asking the court to grant a divorce.
Notify of the other spouse that a divorce has been filed. This is called the Summons-Family Law, and it includes a response form.
File a Declaration of Finances.
Obtain a hearing date.
Attend a hearing before the judge, who will sign a judgment finalizing the divorce. If both spouses agree, neither may have to appear at the divorce hearing.

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:

both the husband and wife agree on all issues;
neither have minor children, nor is the wife pregnant or expecting;
one of the spouses has lived in the state for six months;
the pending divorce is the only legal action pending between the spouse.

To file for a divorce using this routine, the Plaintiff must prepare the following forms:

A Summons, which gives the Defendant 20 days to file an answer and enjoins both spouses from dissipating assets, harassing each other.
A Complaint, which stipulates that they meet the four above conditions and lists irreconcilable differences as the grounds for divorce;
A Verification, which certifies the truth of the complaint and must be notarized;
A Settlement Agreement, which stipulates the terms and conditions of the division and distribution of the marital estate;
Property and Debt Listing, which lists the assets and liabilities of the couple;
An Admission of Service, by which the Defendant admits receipt and acceptance of the Summons and Complaint;
An Affidavit of Proof for Stipulated Judgment, which recapitulates the Complaint and incorporates the terms of the Settlement Agreement into the Court’s Findings of Fact, Conclusions of Law and Order of Judgment;
Findings of Fact, Conclusions of Law and Order of Judgment, which is the court’s finding and conclusions about the case and orders the divorce;
Judgment [Redacted], which contains personal information that is not included in the final Judgment.
Judgment, which contains the same information in the Judgment [Redacted] and ends the marriage.

The Summons must be filed even when the spouses agree to divorce.

Information Provided by: Divorce Source, Inc.

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