What Are the Actual Steps to Getting a Divorce?
If you’ve just started considering a divorce, it helps to know what steps you’ll have to take to legally uncouple from your spouse. Every divorce is unique. Couples without children who haven’t been married for long may have a relatively quick and low-cost divorce, especially if both spouses are willing to negotiate. On the other end of the spectrum, couples who have been married a long time, possess complex estates, and want to punish the other spouse could endure a long, drawn out, and spectacularly expensive divorce.
This all goes to say that your divorce process will depend on your situation as well as the specific laws of your state. However, all divorces do include certain legal steps, beginning with filing a divorce petition and ending with a judgment of divorce. Here are the legal steps you can expect to take if you decide that a divorce is the right option for you.
Step 1 – File a Divorce Petition
To start the divorce process, one spouse must file a legal petition with the court asking for a divorce. You’ll need to file the divorce petition in the county where at least one spouse resides (and ensure that the spouse meets the state’s residency requirements). You may state legal grounds for divorce. Every state allows you to file a no-fault divorce, which won’t place the blame on either spouse. However, if you’d like, you can claim a “fault” for the divorce, such as adultery. The laws regarding which reasons you can claim for a divorce, if any, vary by state.
Step 2 – Ask for Temporary Orders
Even relatively “quick” divorces can take months to reach their end. Spouses who rely on their soon-to-be-ex for financial support could struggle in the interim while things like alimony and/or child support are figured out. If this might represent your circumstance, you can request a temporary order. A judge will hold a hearing with both spouses to determine the situation and will then decide whether to grant the order.
Temporary orders can cover a lot of different requests. You could, for instance, request that your spouse continue paying certain bills or that neither spouse be allowed to sell or get rid of any marital property (known as a property restraining order, order to preserve assets, or something similar).
Step 3 – Serve Your Spouse Once you file a petition for divorce, you’ll need to serve your spouse with the paperwork and give them the opportunity to respond. If you and your spouse are on the same page about the divorce, this can be a relatively easy and quick step. Your spouse merely needs to sign the paperwork and submit it to the court.
In other cases, this step can be difficult. If you don't know where your spouse is, or if you spouse doesn't want to sign the paperwork you may need to hire a professional process server to ensure your spouse receives the divorce petition. If your spouse still cannot be found, you may even need to seek special permission from the court to serve your spouse via publication in a newspaper of general circulation. Proof of service will then be filed.
If your state requires a waiting period before a divorce can be finalized, the proof of service will start the clock on the waiting period.
Step 4 – Your Spouse Responds
If your spouse agrees to the divorce, they only need to sign the receipt of service for the divorce petition to keep the process moving. However, they have the option of filing a response with the court. They can file a response agreeing to the divorce, or they can dispute any point in the petition, including the fault you cited, property, support, etc. If your spouse disputes the petition and the dispute is unresolved, it will be decided at trial. Your spouse must file their response by a certain deadline, which depends on your state. You will then receive a copy of your spouse’s response and a proof of service will be filed with the court.
Step 5 – Prepare for Negotiation or for Trial
Once your divorce petition and your spouse’s response have been served and recorded, you’ll move into the next phase of divorce where you either prepare to begin settlement negotiations or prepare for trial. During this phase, you’ll need to complete interim requirements or pretrial requirements. States have different requirements during this phase, but, generally, you’ll have to file financial statements that list of your assets, liabilities, income, and expenses. Your spouse will have to do the same. If you have minor children, you may be required to attend a course designed to inform you about raising children after divorce. This is also where you establish guidelines for spousal and/or child support if the state requires it.
Step 6 – You Negotiate a Settlement… or Go to Trial
The next phase of the divorce is the settlement process where the couple divides their assets and figures out things like alimony and child custody. If you signed a prenuptial agreement and it is legally valid, it will come into play during this step.
States have different ways of handling settlement negotiations. In some states, the courts will schedule a settlement conference between each side and their lawyers. Other states will require couples to begin with mediation before going to trial.
If possible, mediation is a good first step. During mediation, a neutral third party – the mediator – will help both sides work toward a fair settlement. Collaborative divorce is another option. When choosing a collaborative divorce, both couples agree not to go to trial. Instead, they hire a team of specialists to help them work collaboratively to achieve a settlement.
If you and your spouse try mediation but still can’t come to an agreement on certain aspects of the divorce, then the final option is to go to trial.
Going to trial usually means hiring an attorney who will argue your case before a judge who will make a binding ruling. This can be a long and expensive process. It takes a lot of time and effort by spouses, their lawyers, any hired experts, and anyone else who may be involved to prepare for trial.
Step 7 – The Court Signs a Judgment
If you and your spouse reached a settlement out of court, you’ll need to send it to the court for review. (Typically, an attorney will draft the settlement.) If the court finds that the settlement is acceptable, it will approve and sign a judgment order. If you tried your case in court, the judge will determine the final judgment. You may be in for a wait of weeks or months before you receive a judgment order. If your state has a waiting period, the judgment order will be entered after the waiting period expires (unless the waiting period can be waived for good cause).
You Are Now Divorced
Once you have the judgment in hand and your state’s waiting period is over, you are legally divorced from your spouse. The provisions of your settlement will kick in and you and your ex will be legally allowed to remarry. It’s not uncommon to discover loose ends after the judgment that still need to be tied up. For the most part, however, it’s now time to move on with your life and start a new chapter.
This article provides a very broad overview of the steps of divorce. Your actual experience will vary. As you become more serious about your divorce intentions, it’s a good idea to dive into the details.
We review the legal process in great detail our at monthly Second Saturday Divorce Workshop
This article is reprinted with permission from the Women's Institute for Financial Education (WIFE.org), creator of the Second Saturday Divorce Workshops. Founded in 1988, WIFE is a non-profit organization dedicated to providing financial education for women. Copyright 2019