Although this website is about divorce, getting your actual legal divorce is usually the easiest part of the process. That is, if you successfully negotiate all of the financial and child-related issues with your spouse, your hard work is done. Getting the legal divorce is essentially a bureaucratic process.
As with getting married, getting a divorce requires completing a legal procedure mandated by your state. Regardless of whether you and your spouse have already agreed on the financial and child-related issues, every state requires you to file a divorce complaint or petition with the court. This complaint is the beginning of a civil lawsuit. The spouse who files the complaint or petition becomes the plaintiff, or petitioner, in the case. The other spouse is referred to as the defendant, or respondent.
The timing of filing your divorce complaint is dependent on your state, the grounds you choose to include, and whether you are in need of temporary alimony or child support. For instance, in order to obtain a no-fault divorce, some states require a period of separation prior to filing. In others, a required period of separation begins at the time of filing. A filing with fault grounds may have no such waiting periods in your state but, of course, may take longer in the end if your spouse chooses to contest the filing.
One concern we often hear from clients is how they will manage their financial details during the limbo-like period of separation. Most states have laws in place that provide stop-gap measures to ensure that children, particularly, are taken care of during the upheaval of a divorce. Federal laws mandate that states move quickly on child support issues. In North Carolina, for instance, a request for temporary child support could be the first issue filed in a case. Nothing would have to precede it—you could even still be living together. An attorney will be able to explain the details in your state, but systems are in place to ensure the relatively smooth division of one household into two.
Another issue to consider with regard to when you begin the legal divorce proceeding is where you are in the emotional process of ending your marriage. It is important, at some point, to go ahead and start the clock running. But generally, the more easily a couple can talk about their plans before starting anything that feels like an adversarial process, the less likely it is that things will blow up on them. It would not be good for your spouse to be surprised by having a police officer serve him or her with divorce papers.
As you consider filing for divorce, you may wonder if it makes a difference whether you or your spouse files first. In most cases, the spouse who files first does not receive any significant advantage. The filing spouse is able to withdraw the divorce case if he or she has a change of heart, whereas the nonfiling spouse could not do so unilaterally. If the nonfiling spouse did not want the divorce but the filing spouse did, a divorce based on no-fault grounds would be granted even over the nonfiling spouse’s objection.
Once a divorce complaint is filed, you or your attorney must formally notify your spouse. This is known as serving the papers on your spouse. In some jurisdictions, you may be able to serve the papers by certified mail, although the state may require that someone other than you send the mail. Service can be handled by a sheriff or, if your spouse is attempting to evade service, by a private process server. It is often possible for your spouse to sign a document that waives the need to serve the divorce papers on him or her. This method is common in uncontested divorces or when both parties have lawyers representing them, thus eliminating the potential embarrassment of a sheriff arriving to serve papers at someone’s workplace.
Once the papers are served, the nonfiling spouse (defendant) has a limited period of time (twenty to sixty days) in which to file a response. In uncontested situations, the defendant may choose to not file a response. If you are the defendant and choose to not file a response the judge may award all of the requests in the divorce complaint. Filing a response allows you to let the court and your spouse know what items in the complaint you agree or disagree with. If you have yet to come to agreement on the divorce issues, your response will be part of stating your position in your negotiations. If you receive a response, check it carefully to ensure that your spouse has indicated agreement with everything in the complaint. If you were expecting an uncontested divorce and were handling things without a lawyer, a response contesting items in your divorce complaint should give you pause and prompt you to at least consult with a lawyer so that you understand your legal options.
Because divorce involves the division of property and, potentially, alimony, some states require you to complete a financial disclosure or affidavit. You may need to file this information with the court or serve it on your spouse or both. This helps ensure that everyone is aware of all financial details prior to the dissolution of the marriage, after which it may be difficult or impossible to address any inequity.
In an uncontested divorce—once the divorce complaint, response, and any required financial forms are complete—the spouse who filed the complaint, or his or her attorney, will need to complete some additional forms to prepare for the finalization of the divorce. This will include a divorce judgment that the judge will review and, if all is proper, sign.
In some states, there is a required period of separation between the filing and the granting of the divorce. In others, if you have met the requirements (one of which may be a period of separation), the court will hear your case fairly quickly (thirty to sixty days). When the date comes for your divorce to be reviewed by a judge, you or your attorney may need to appear in court. If everything is in order, the judge will sign your divorce judgment or decree. In order to truly finalize the divorce, the filing party or their attorney may be required to file this document and serve it on their spouse.
