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.
Divorce Paperwork
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.
What Papers Do You Need to Get a Divorce?
A divorce case begins when you file a petition for divorce and deliver it to your spouse. You’ll also typically file a financial affidavit that describes your income, expenses, and property. Other common documents include a settlement agreement and a parenting plan.
Here’s an overview of these basic divorce papers and where to get them.
Different states have different divorce forms and different laws. However, some documents are common across the board.
1. Dissolution of Marriage Petition
To start a divorce, file a document known as a “petition” with your local court and pay a filing fee. A divorce petition includes basic information, like the names of the parties, the county you live in, when you were married, and your grounds for divorce. If you can’t afford the filing fee, you may be able to get it waived.
Unless you and your spouse file for divorce jointly, you’ll also need a summons. A summons notifies your spouse (the “defendant”) that you’ve filed for divorce, and it gives the defendant a deadline for filing a formal response. The summons and petition must be delivered to, or “served on,” the defendant. In some states, someone other than you must hand deliver them. In other states, they can be mailed.
2. Settlement Agreement
You may have a contested or uncontested divorce. In an uncontested divorce, you and your spouse agree on all the issues you need to deal with before your divorce can be final. This includes whether to get divorced at all, alimony, child support, child custody, and dividing your property and debts.
In a contested divorce, you disagree about one or more issues. Most couples with contested divorces do eventually reach an agreement, either on their own or with the help of a lawyer or mediator.
Your written agreement about support, custody, and property is known as a settlement agreement. You’ll each sign it, and you’ll file it with the court as part of your divorce case. When your divorce is final, the settlement agreement will be part of the court’s order.
3. Financial Affidavit
A financial affidavit is a sworn document that lists your income, expenses, debts, money, and property. You and your spouse must each file one in almost all divorce cases. A judge uses the information in a financial affidavit to set child and spousal support, award attorneys’ fees, and if necessary divide up property.
It can be hard to find specific advice on how to fill out a financial affidavit. A good rule is to take your time and be as accurate as possible. You may have to defend your affidavit’s numbers in a deposition or in court. You may want help from a friend, an accountant, or a lawyer.
4. Parenting Plan
If you have children, a parenting plan is your guide for handling major decisions as well as everyday life after your divorce. A parenting plan describes when the children will be with each parent. It says who will pay for things like music lessons and college tuition. It covers vacations, medical emergencies, and decisions about education and religion.
Although parenting plans typically follow a standard format, parenting responsibilities may be shared in many ways. Ideally, you and your ex will agree on a plan that makes sense for your family. The parenting plan will be included in the final divorce decree.
Where Can I Get Divorce Forms?
Your county court clerk’s office or website can tell you how to get divorce forms for your state. These forms may include general instructions for how to fill them out. You can also find the appropriate online divorce papers by using a tool that asks questions and prepares your forms for you. Divorce works a little differently in each state. Now that you have some basic information about divorce documents, you can find out what exactly you need to do to end your marriage in the state where you live.
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.
Discovery
In contested divorces, discovery becomes the heart of the action. Discovery permits the spouses to gather detailed information from each other about assets, income, and 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 an attorney’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.
Cooling Off
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.
Divorce Settlement
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.
Divorce Trial
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.
Divorce Laws
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.
Uncontested Divorce
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.
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 attorneys 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.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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West Jordan, Utah
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