The Divorce Process

The divorce process can be expensive and time-consuming. Learn what to expect in the divorce process and how you can avoid a prolonged, costly divorce.

Divorce doesn't happen overnight. In most states, there is a series of steps you must take to dissolve your marriage. Read on to learn what to expect during the divorce process.

Separation

Whether you're considering temporarily taking a break from your marriage or you plan to file for divorce, the chances are that you'll experience a separation (if you haven't already) from your spouse. Couples can decide to separate on their own or formally ask the court to issue a legal separation (depending on where they live). Regardless of how you separate, it's important to understand that a separation is not the same as divorce. A divorce permanently dissolves your marriage, but with a separation, the couple remains legally married until one spouse asks for a formal divorce.

Depending on where you live, the court may require a couple to separate before allowing them to start (or complete) the divorce process. Several states don't require couples to live separate and apart before asking for a divorce, but in many marriages, once a spouse files for divorce, living together may be impossible. Every state has its own definition of "separation." Some may require a couple to live in separate homes. Others may allow couples to remain in the same home, but require that they refrain from sexual relations.

Trial Separation

Every marriage has it's ups and downs. If you and your spouse feel like you need a break from each other, but reconciliation is still a possibility, you can choose to live apart during a trial separation. Some couples will attend therapy during the trial separation to try and resolve their marital problems.

Court's don't get involved with trial separations, so typically both spouses have to be on board with the decision to separate. Generally speaking, during a short trial separation, your state's marital property laws still apply—meaning anything you or your spouse acquire during this trial period will still be considered marital property and belong to both spouses.

If the trial separation is going to last for more than a month, couples may want to put the terms of the separation into an informal agreement, so there's no confusion and the expectations are spelled out clearly. For example, you can state the amount of time you plan to be apart, how you'll manage parental responsibilities, who will pay the bills, when each parent will see the children (if any), whether you'll continue sharing a bank account, how you'll manage the family home, and anything else that's important to you.

Legal Separation

In some states, couples who can't reconcile, but don't want to file for divorce can ask the court for a legal separation. Legal separation may be appropriate in marriages where the couple's religion prohibits divorce, where a couple needs to stay married for health care or tax purposes, or, in some cases, to share Social Security benefits. Not all states offer legal separation, but in the states that do, the process is very similar to traditional divorce, except that in the end, you're still legally married. Both spouses must agree to file for a separation. If either spouse asks for a divorce, the court will proceed with a traditional divorce.

If your state doesn't offer legal separation, you may still be able to permanently separate by entering into a formal, written settlement agreement with your spouse that covers how you will handle any and all marital issues that apply to your case, such as:

  • child custody and support,
  • alimony (spousal support), and
  • property and debt division.

If you're unsure whether your state offers legal separation or whether it's the right approach for you case, you should speak with an experienced family law attorney near you.

Filing a Divorce Petition

If you've decided that divorce is the right choice for you, you'll need to initiate the legal process to get your divorce case started. Before you file any paperwork, check with the court to determine if your state requires you and your spouse to live separately before filing. If you file too early, you risk the court rejecting your case, and you'll have to start over.

The spouse requesting the divorce must a file divorce petition (sometimes called a complaint for dissolution of marriage) with the local court in order to start the divorce case. Typically, the petition will include the following:

  • each spouse's personal information (name, address, social security number)
  • whether the couple has minor children, and if so, each child's information
  • the legal grounds for the divorce, and
  • the filing spouse's requests for property division, child custody, child support, and/or alimony.

Once you have the petition completed, you'll need to bring it to your local court, along with any other required documents, and pay the filing fee. If you can't afford to pay, you can complete a fee waiver request. If the judge approves your request, you won't have to pay the court's filing fee.

Grounds for Divorce

There are two types of divorce: no-fault and fault-based. No-fault divorce means that the filing spouse asks for a divorce without alleging that the other spouse did something wrong. Instead, the spouse tells the court that the marriage is irretrievably broken, or that the couple suffers irreconcilable differences. In some states, you can request a divorce based on separation for a certain period of time. While this is no the classic "no-fault" ground, it is similar in that it doesn't require either spouse to allege the other is at fault for the divorce.

All states offer a no-fault divorce (or divorce based on separation). No-fault divorces are less expensive and time-consuming than fault divorces.

Some states still allow spouses to file for fault-based divorce. In a fault divorce, a spouse will alleges in the divorce complaint that the other spouse's misconduct caused the breakup. Some spouses ask for a fault divorce to feel vindicated for the other spouse's wrongdoing. Others ask for a fault divorce to try and influence the judge's property and spousal support decisions.

In the states that permit fault divorce, the most common grounds are adultery, alcohol or drug abuse, abandonment, and physical abuse. Fault divorces require the filing spouse to prove the allegations in court, so the process tends to take much longer and cost more than a no-fault divorce. If you're considering a fault divorce, you should speak to a local attorney to determine if you qualify and whether the added expense is worth it in your case.

Serving the Divorce Petition

Regardless of the "type" of divorce you choose, after you file your documents with the court, you must serve (deliver) a copy of the paperwork to your spouse. You can ask your local sheriff's department to give the documents to your spouse, or you can hire a private process server to do it for a fee. If you can't find your spouse, you can ask the judge for permission to publish the divorce information in a local newspaper.

Service is important because it ensures that both spouses have time to review and respond to the complaint before the court acts. Nearly every state has a "waiting period" that the court must allow to pass before the judge can finalize the divorce—which is the state's way of allowing the couple time to either reconcile or negotiate the terms of the divorce. The filing spouse must complete and provide proof of service to the court before the waiting period begins to run.

Default Divorce

After you deliver the paperwork to your spouse, the law generally allows the responding spouse 21-28 days to answer. If your spouse fails to respond by the deadline, you can ask the court to issue a default judgment in your favor. A default divorce means that the court will award you everything you asked for in your complaint. If there are minor children involved, the judge will ensure that your requests in the complaint are in the children's best interests before issuing an order. Once the judge signs the final documents and issues a divorce decree, your marriage is over.

Response

If your spouse responds to the complaint, the court must proceed with the traditional divorce process. The responding spouse (respondent) can submit an "answer" to the complaint, which agrees or disagrees with the filing spouse's (petitioner's) allegations, or the respondent can file a counter-complaint, alleging new facts for the judge to consider. Like with the original divorce complaint, the respondent must serve a copy of the answer to the petitioner and then provide proof of service to the court.

A Temporary Hearing

Even in cases where divorcing spouses agree on everything in their case, the process can still take time. Depending on where you live, some states require couples to live separately for up to a year before the court can finalize a divorce. Other states have waiting periods in excess of 6 months. Because of this, the court has the power to hold temporary hearings to resolve any essential issues while the divorce is pending.

Common reasons for temporary hearings may include:

  • temporary custody and parenting time arrangements
  • child support
  • domestic violence restraining orders
  • allocation of marital expenses during the divorce process
  • restrictions on the sale or use of joint assets, like bank accounts and marital homes, and
  • spousal support.

If you need assistance—financial or otherwise—while your divorce is pending, you should speak to an experienced attorney who can help.

The Divorce Settlement Agreement

If you and your spouse agree on all your divorce-related issues, you should put your terms in a settlement agreement. A divorce settlement agreement is a legally binding contract that outlines how the couple resolved divorce-related issues.

The couple will submit the signed settlement agreement to the judge and if it meets the state's requirements for fairness to both spouses, the judge will sign it and incorporate it into the final divorce judgement.

A settlement agreement allows the couple to maintain control over the most important aspects of their divorce, including:

Settlement or Trial

Settlement

Contrary to what you may see in mainstream media, most couples can work through their issues and agree on the divorce terms without a drawn-out trial. Some couples agree on everything right away and hire attorneys just to memorialize the agreement for them to present to the judge.

However, if you need a little help communicating and working through unresolved issues with your spouse, you can consider divorce mediation. Mediation is a voluntary (in most cases) process where the couple meets with a neutral third-party, who will facilitate the negotiations between the couple. If the couple agrees on their issues, the mediator will draft the settlement agreement for both spouses to sign.

Mediation is also popular because if there are unresolved issues after the session, the couple can ask the court to decide those limited issues, so mediation can be a valuable service even if the couples doesn't resolve every issue their case. Mediators don't have the power to make binding decisions, so divorcing couples often feel more powerful after negotiating their settlement together.

Settling your divorce may not be easy, but if you go into negotiations understanding that you and your spouse will both need to sacrifice a little to meet in the middle, you will spend significantly less time and money on your divorce than if you go to trial.

Trial

For some couples, negotiation is impossible, and a divorce trial is necessary. A trial means that there are unresolved issues between the spouses. Typically, the spouses and their lawyers will attend multiple court hearings to present witnesses, evidence, and testimony to the judge, and the judge will decide how to handle the case.

If there's a custody dispute, a court may require the family to complete a custody evaluation. A custody evaluator will conduct an investigation by interviewing the parents, children, other relatives, teachers, caregivers, and/or therapists in order to prepare a recommendation on how much time the child should live with each parent. This process is expensive, invasive, and can take several months to a year to complete.

A divorce trial can cost many thousands of dollars, and you may be unhappy with the end result, so it's important to think long and hard before you walk away from your settlement negotiations with your spouse.

Frequently Asked Questions About Divorce

How long does it take to go through a divorce?

It depends. If you and your spouse agree on the issues right away, you may only need to wait until your state's mandatory waiting period expires to finalize your divorce. Some states offer streamlined divorces where the couple presents a signed settlement agreement to the court, and the divorce is over in a matter of 60 days. If you and your spouse butt heads at every issue, you can expect your divorce to take years.

Do you have to separate before you divorce?

It depends on where you file for divorce. If you live in a state like Arizona, North Carolina, or Kentucky, you may need to live separate and apart from your spouse for up to one year. However, if you live in a state like Michigan, you can immediately file for divorce without separating. Every state has its own laws and definitions regarding separation and divorce, so if you're unsure, speak with an experienced family law attorney in your area before you file.

How do you know when the divorce is final?

In most cases, it's the date listed on your final judgment of divorce. In some states, you'll need to attend a final divorce hearing, even if you settled your case outside of court. During the final divorce hearing, the court will ask you questions "on the record"—meaning in court while you are under oath—to verify that you meet all your state's divorce requirements. Once the court is satisfied, the judge will sign the final judgment of divorce and submit it to the clerk to record. The clerk will provide you with a final copy.

If you don't need to attend a hearing, the date of your divorce is the date located under the judge's signature on the final order.

What happens if a spouse doesn't follow the divorce decree?

Orders from the court are not optional, so if either spouse fails to follow the order, the other spouse can ask the court for help enforcing it. The court may require the offender to attend a "show cause" hearing, which is where the spouse will appear in front of the judge to explain the violation. Repeated failures to abide by a court order may result in the court finding the spouse in contempt, which carries penalties ranging from legal fees and court costs to time in jail.

If you disagree with a provision in your divorce decree, follow the legal steps to change it in order to avoid punishment from the court.

What does "contest a divorce" mean?

A contested divorce means that there's at least one issue where you and your spouse can't agree. If you dispute your spouse's allegations in the original divorce complaint, you can contest it by filing a response (or answer) with the court. Your response should list the allegations you disagree with, and you should also include any new allegations. You should let the court know which remedies you're seeking and what you would like in terms of child custody and support, alimony, and property.

If you and your souse are unable to settle your contested issues, then a judge will have to decide them for you at trial.

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