Is a Divorce a Lawsuit?

By Beverly Bird

Even an uncontested divorce is technically a lawsuit. You and your spouse may agree to a divorce settlement, but you can’t actually become divorced until one of you files a complaint to begin the legal process. After this occurs, divorce is subject to the same legal concepts that govern all lawsuits.

Service of Process

Whenever someone files a lawsuit against another individual, it is that individual's right to receive notification of the suit and to know exactly what it entails. This is due process of law, protected by the U.S. Constitution. Courts make sure due process has occurred by requiring the plaintiff, the person who files a divorce complaint, to officially serve her spouse with a copy of it. The law requires this even if the divorce is amicable; the plaintiff must then file a document with the court, confirming that service has been made. Most states allow the defendant to accept the petition by voluntarily signing an acknowledgment of service. When a divorce isn't consensual, the plaintiff can hire a sheriff or professional process server to deliver the complaint to her spouse for a small fee.


In criminal cases, the prosecution and defense must exchange the facts of their respective cases prior to trial. The same discovery process applies to divorce lawsuits. Each spouse has a right to a documented understanding of the assets, debts, expenses and income of the other. This enables them to make appropriate decisions in settlement discussions. If the divorce proceeds all the way to trial, this information also guides the judge regarding the facts in dispute. Attorneys in divorce matters usually issue subpoenas to third parties, such as banks and employers, demanding documents to confirm a spouse’s estimation of his finances. Interrogatories are another common divorce discovery tool. interrogatories involve pages of written questions, which each spouse must answer honestly, under oath. In some complex cases, attorneys might even depose each spouse, orally asking them questions under oath.

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Settlement Procedures

Most civil lawsuits, such as person injury or tort claims, require arbitration or a similar proceeding to allow opposing parties to try to reach a settlement before going to trial. The divorce process is similar; most states require divorcing spouses to attend some type of settlement conference. These conferences usually take place in the presence of a judge or another court official who oversees the process and makes recommendations for settlement. Only if spouses fail to reach a settlement will the court allow the lawsuit to proceed to trial.


A jury is not usually present at a divorce trial, although some states will provide one if a spouse requests it. The terms of a divorce decree usually come down to the opinion of a single judge when a divorce goes to trial. The plaintiff goes first, presenting the facts of her case and calling witnesses. Her spouse is then permitted to cross examine her witnesses and argue the validity of any exhibits she presents to support her case. The defendant then presents his witnesses and proofs; the plaintiff has an opportunity to challenge these as well. A judge rarely make his decision immediately at the end of a divorce trial. Both spouses are sometimes required to make their closing arguments in writing at some point after the trial ends, summarizing their cases. The judge then reviews the arguments and all the evidence presented in trial before ultimately issuing a final divorce decree. In some states, this may take months.

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Instructions for Handling a Summons & Complaint


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Cross-Motions In Divorce

Cross-motions and motions are as inseparable as macaroni and cheese -- a cross-motion in a legal proceeding is a response to a motion. Motions are a request for a court order and can be made before, during and after a trial. Either party can file a motion asking a family law judge for an order relating to issues involving custody, visitation, child support, spousal support or restraining orders to keep the parties apart during the divorce process. The opposing party has the right not only respond to the motion, but also to ask for its own court orders in its cross-motion.

What Is a Prove-Up Hearing in the Divorce Process?

It takes two to tango, but sometimes only one to obtain a divorce. When only one spouse files papers in a divorce action, the court may grant a default divorce judgment generally on the terms requested by the filing spouse. Some courts require that party to appear to establish some of the essential facts before entering the final divorce judgment. A similar hearing may be required in any uncontested divorce proceeding. This is called a "prove-up" hearing in some states.

What Happens at a Mandatory Divorce Settlement Conference in California?

In California, judges can order mandatory divorce settlement conferences. These conferences are held between the parties and a court-appointed mediator or judge, and all parties and their attorneys must attend. The settlement conference gives the parties a final opportunity to settle before going to trial and is typically scheduled 30 days before trial. Judges are especially likely to order these conferences when child custody is in dispute because they allow parents to come to an agreement they can both tolerate.

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