The first step in filing for divorce is deciding whether to do it alone or as a couple. In a mutually agreed upon divorce, both parties sign the paperwork, indicating to the court that the couple is in agreement. If you're divorcing a spouse who doesn't agree or doesn't know yet, you can file paperwork on your own but the case can't proceed until copies are served to your spouse.
Requirements for Divorce
Every state has its own rules for mandatory waiting periods between separation and divorce. Some states waive any waiting period if you file a fault divorce and claim one spouse is responsible for the breakdown of the marriage; however, not all states allow fault divorces. Some states also have residency requirements, ranging from six weeks to one year.
Fault Vs. No-Fault
Almost every state offers a no-fault divorce in which neither spouse needs to have broken the marriage by committing adultery, cruelty or a felony. According to Charlene Wear Simmons of the California Research Bureau, modern grounds for a no-fault divorce include incompatibility, marital breakdown and irreconcilable differences.States that still allow ault divorces put the burden on the accuser to prove a spouse's neglect, cruelty or other behavior pattern detrimental to the marriage, but a favorable judgment can work to your advantage when it comes to awarding custody or spousal support.
Where to File
Divorce paperwork is filed and processed by your city or county court. According to author Emily Doskow in Nolo's Essential Guide to Divorce, most jurisdictions have special family courts that only handle divorce and custody hearings. You can get the divorce petition at the court clerk's office, print it from the court's website or visit a divorce attorney to obtain a copy. File the completed petition with the court clerk and pay the required fee to get the process started.
Proof of Service
If you filed for divorce without notifying your spouse, additional paperwork must be filed for the case to continue. According to the Law Firm of Hill/MacDonald, LLC, a county sheriff or a process server must deliver a copy of the paperwork to the unaware spouse and then certify to the court that it was done. The newly aware spouse now has the opportunity to file a counter-complaint, responding to any allegations in the first spouse's filing.
Rest of the Process
Once everyone is aware the divorce paperwork has been filed, the spouses must agree on how to divide marital assets and child custody. If they can't, the judge will decide for them at the final divorce hearing. In some states, such as Wisconsin, the courts require couples with children to go through parenting programs and/or file a written plan for raising the children. Once the plans and negotiations have gone as far as they can go between the spouses, a final hearing is held and the judge delivers a divorce decree, including a final ruling on assets, custody and child or spousal support.
References
- Wisconsin Court System: Basic Guide to Divorce/Legal Separation
- Nolo: No Fault Divorce Vs. Fault Divorce FAQ
- California State Library: State Grounds for Divorce by Charlene Wear Simmons, Ph.D.
- "Nolo's Essential Guide to Divorce"; Emily Doskow; 2008
- Hill/MacDonald, LLC: Things to Expect During a Divorce Case
