Legal Procedures for Divorces

by Beverly Bird

Divorce is usually as streamlined or as complex as the differences that exist between you and your spouse. If you get along reasonably well and can reach an agreement on all issues, you can typically get through the process with a minimum of fuss. If your divorce is contentious, however, each step may take longer.

Divorce is never easy, but we can help. Learn More

Filing

Divorce begins when you file a petition or complaint to initiate the process. You'll have to make sure you've lived in your state long enough to do so, and you'll have to determine on what grounds you wish to file. All states now recognize some version of no-fault divorce, so there's no need to cast blame over who ended the marriage. In some states, you can only file on no-fault grounds; these are "pure" no-fault jurisdictions and don't recognize marital misconduct as a reason to end your marriage. At the end of your petition or complaint, you can list things you want the court to award to you as part of your divorce, such as custody or property.

Service of Process

The next step is to make sure your spouse gets a copy of your petition or complaint for divorce. Depending on your state's rules, you can have the sheriff deliver the paperwork to your spouse, or you might be able to use a private process server. Some states will allow service by certified mail. The most amicable way to achieve service is to have your spouse or his attorney accept the documents and sign an acknowledgment or waiver of service.

Answering the Complaint

Your spouse will have about a month's time to respond to your complaint for divorce. He can file a simple answer with the court, either agreeing with or denying the statements and requests you've made in your papers, or he can file a counterclaim. In a counterclaim, your spouse can make his own statements about the divorce action and make his own requests of the court.

Pendente Lite Motions

After your spouse has filed answering pleadings, you can ask the court to put temporary orders in place until your divorce is final. Some states call these "pendente lite" orders. The procedure usually involves filing a motion to request child support, a custody arrangement or spousal support while your divorce is pending.

Discovery Phase

Discovery involves exchanging information with your spouse and gathering documentation to establish all the economic facts of your marriage. As part of discovery, your respective attorneys might want to ask questions of each of you under oath. Depositions involve your spouse's attorney questioning you in person while a court reporter takes down the dialogue. Interrogatories are written questions, and you must sign your answers under penalty of perjury. You might also make requests for copies of bank statements, loan documents or pay stubs – anything that will help you substantiate marital debts and assets so you can reach a settlement.

Mediation

After you've established all the facts of your case, you can get down to the business of resolving your marriage. Some states mandate mediation, where you and your spouse sit down with a third party to try to negotiate a marital settlement. Mandatory, court-ordered mediation usually addresses custody issues. Mediating financial issues is often optional. You and your spouse can also try to reach a settlement on your own.

Trial

If you can't reach a settlement, the court will eventually schedule your case for trial. You and your spouse will each get the opportunity to present your case to a judge, including the use of witnesses and copies of documentation you gathered through discovery. You – or your attorney – will argue your case, attempting to convince the judge to rule in your favor. After the trial, the judge will issue his order, setting out the terms of your divorce in a decree.