How to File for a Divorce

Singer Fergie first announced a separation from her then husband almost two years before filing for divorce. The divorce process can sometimes take even longer than this. Courtesy of AJC.com

Divorce, annulment, and separation. Those are the three ways of terminating a marriage. Each state law provides the circumstances in which a person seeking to terminate their marriage may adopt one process or the other. Knowing the requirements of the laws and regulations will help the petitioner determine where their situation fits.

What's the Difference between an Annulment and a Divorce?

While a divorce process would end a marriage between two people, there will always be records that they had a valid marriage that had come to an end, and they may remarry other people afterward. The parties to a divorce are often still obligated to each other, especially where property, finances, and children are concerned.

An annulment is different. It declares a marriage null and void. Essentially saying the two people were never married. An annulment may be issued by the court if the court is convinced, among other things, that:

• The couple was unable to consummate the marriage
• Either party is already legally married to another person (bigamy)
• One party married the other under false pretenses, misrepresentation, and fraud
• One party was forced into the marriage
• Either party was under the age of consent at the time of the marriage, and there was no parental consent

What's the Difference between Legal Separation and Divorce?

Parties who are legally separated may go their separate ways, live in separate homes, pay alimony and child support, and determine child support whether in court or by agreement, just as is often evident in a divorce.

But the parties in a separation remain married and cannot remarry other people. They may decide, after being separated, to work on their marital troubles and cancel the separation. Once a divorce decree has been issued, cancellation is almost impossible. A legal separation allows the couple to take the time to decide whether or not they want to stay married or they want to end the marriage completely.

Types of Divorce

Filing for divorce initiates the legal process of ending a marriage. The end goal for any divorce proceedings is to legally separate the parties so they are no longer obligated to each other as husband and wife. However, a divorce does not terminate the parties’ obligations to each other as parents and ex-spouses.

Making the decision to get a divorce may be emotionally tasking and the effects of dissolution of a marriage can be lasting. Having proper legal guidance on how to proceed may reduce the stress involved in the process.

As a general rule for most states in the US, a spouse may only file for a divorce in the state they have resided for a specified minimum period of time and the grounds for divorce are set in the laws and regulations of each state.

There are two types of divorce: no-fault and fault divorce.

No-Fault Divorce

This is a type of divorce where the party filing for divorce is not required to prove fault or misconduct of their spouse as reasons for filing the divorce. In addition, the spouse against whom the divorce is filed does not need to defend themselves or present the misconduct of the spouse who is filing the divorce.

Several States in the U.S are no-fault states, including Nevada, Montana, Hawaii, Washington, and California. This means there is usually no need for a spouse or registered domestic partner to prove the other spouse did anything wrong. The spouse only needs to state that they can no longer live with their spouse due to irreconcilable differences. Irreconcilable differences or irretrievable breakdown of a marriage is the legal term used to describe a general breakdown in communication between the couple such that they can no longer get along or find any resolution but to go their separate ways.

Fault Divorce

This is the traditional ground for divorce under which one spouse files for divorce and is expected to show that the bad actions or inactions of the other spouse is the reason their marriage is broken down and they require a dissolution. States where fault divorce is allowed, provide a list of possible misconduct under which this sort of divorce may be filed.

Georgia allows couples to file for divorce by choosing one of the several grounds provided by the law as the reason for the divorce and attaches great relevance to the proof for grounds under which the divorce is filed so much so that it may affect the outcome of the divorce, including custody to the children, alimony, division of marital property, etc. For instance, a spouse who is able to convince the court of domestic violence by the other spouse may be awarded sole custody, in the best interest and safety of the children. A person filing on a fault ground may file under the following:

• The marriage is irretrievably broken down
• Spousal abuse ( emotional, physical, metal) and cruel treatment
• The wife is pregnant by another man at the time of the marriage (this must be unknown to the husband at the time of the marriage)
• Both spouses are closely related and within the prohibited degrees of kinship
• Adultery
• Mental incapacity at the time of the marriage
• Impotency (at the time of marriage)
• Involuntary marriage due to force, duress, or menace
• Conviction for a crime (the length of sentence time is dependent on the state)
• Habitual intoxication or drug addiction
• Desertion or abandonment
• Infection with sexually transmitted disease
• Incurable mental illness

A fault divorce may require more evidence or documentation than a no-fault divorce. A divorce may also be uncontested, mediated or collaborative.

Where to Start Filing for a Divorce?

Step 1. Understand the State Law

Meet the necessary prerequisites. Every state has the power to make laws and regulations relating to family matters within the state, including marriage and divorce. Each state puts its own unique spin on the generally applicable laws and procedures. However, decisions made in one State’s courts are valid in states throughout the US in compliance with the United States Constitution Full Faith and Credit Clause, which requires every state to honor the orders of other courts within the country.

Many States laws provide for basic preconditions to be met before a divorce can be filed in the State. Some of these include:

Residency: One or both spouses is usually required to have been resident in the State between three to six months (depending on the state) before the time of filing the divorce. Some states like Alaska and Washington have no minimum resident requirements. In Kansas, one of the spouses must have been resident for 60 days. In Illinois, 90 days; Louisiana, 365 days; Florida, 180 days; Nevada, 45 days, etc. irrespective of the state residency minimum, the requirements may not be as stringent if:

• It was the State in which the couple were married
• The total and irretrievable breakdown of their marriage occurred there
• The spouses live in-state

Court Jurisdiction: This refers to the legal authority for a specific court to hear a divorce case. It is important for a spouse filing for divorce without the help of an attorney to know the appropriate court in which to file. The family court is under the superior court of Arizona and has jurisdiction to hear divorce matters. In California, it is the Superior Court of California, the Circuit Court in Arkansas, District Court in Colorado and in Florida, the Unified Statewide Court hears family matters.

Waiting period: Some states have a mandatory waiting period before a divorce may be filed or finalized. In some states, the length of time for which the couple has been married may determine if they are eligible for a divorce. Newlyweds are often more affected by this rule.

Waiting period for finalization of divorce usually begins to count from the day the divorce is filed or the date the other spouse (the party against whom the divorce is being filed) was notified (served court divorce papers). In California, there is a 6 months +1 day waiting period starting after the spouse has been served before the divorce may be finalized. The waiting period in Alabama starts once the divorce is filed for 30 days. Neither the filing nor the receiving spouse may remarry after finalization of divorce in Alabama, except to each other until 60 days have elapsed after the divorce was finalized. In Iowa, the waiting period is 90 days, starting from the date the other spouse has accepted service. Some states may waive the waiting (cooling off) period if both parties agree, but in most states, the waiting period must be completed.

Step 2. Obtain Information and Necessary Records Including Marriage Certificate

This is a very crucial step in any divorce process, whether or not the spouses have engaged the services of an Attorney. Information is key in understanding the laws, regulations, and procedures for divorce in any state. Affected parties must understand what is required to reduce and if possible eliminate contention during the divorce process and dissatisfaction with the divorce outcomes. It is also important to present necessary official marriage documents such as marriage certificate, income tax returns, copies of prenuptial or postnuptial agreements (where applicable) property documents and valuation, proof of other marital income and debts.

Obtaining resources and vital records on trusted websites like www.staterecords.org can be very useful in navigating the divorce process.

Step 3. Plan

Planning ahead can save a ton of money and reduce the opportunity for misrepresentation of financial information for both parties. The spouse filing for divorce must prepare ahead of time, familiarize themselves with the family finances if they were not in the loop before and decide beforehand what type of evidence they would like to present in court (especially for a fault divorce) and determine whether or not such evidence is admissible in court. Other important decisions such as hiring an attorney, whether or not a reconciliation counseling procedure would benefit the spouses, evidence on why they may be asking for full custody (if applicable) may be thought out during the planning stage of the divorce.

Initiating the Court Process for a Divorce

There are two options for initiating the divorce process in Court; the petitioner( spouse filing for divorce) may decide to represent themselves in court or appear pro se. The second option is to engage the services of an attorney to file and represent the interests of the spouse in court. Many people hire an attorney to help them through the complicated divorce process and legal procedures. Regardless of the option chosen, the following steps are applicable for initiating divorce court proceedings.

STEP 1: File a petition

A petition is the first step in court for filing a divorce. Once a person is ready to file for a divorce and has confirmed the State and County in which they can file, the filing spouse or their attorney must obtain and submit the necessary paperwork called the divorce petition, fill them, get them notarized and submit them to the Court Clerk. The Court clerk will look through them, if there are no errors, the court clerk will retain the original and return copies marked “filed” to the petitioner. It is necessary to pay applicable filing fees or ask for a waiver if eligible. For spouses appearing pro se, various states like California have Self-help Centers for guidance.

In Nevada, if both parties agree, they may file a joint petition for divorce. If so, the divorce process is streamlined and the parties may not need to appear before a judge. Most states allow some form of summary divorce if the parties meet certain criteria such as no children or no minor children, limited marital asset, less than a specified amount, were married for 5years or less, both spouses give up the right for spousal support, etc. In some States, if the couple can show proof that they have resolved issues of child custody, spousal support, and assets distribution, they may be able to adopt the summary divorce process, even with children or substantial valuable asset.

Depending on the State, the petitioner may have to complete and file court forms to initiate the divorce petition which may include:

• Petition/ Divorce Complaint form: The form requires the petitioner to provide basic information about their marriage and the orders they would like the court to make in dissolving their marriage. This is also applicable to terminating Domestic Partnerships in States like California.
• Summons: The summons notifies the other spouse that their spouse (the petitioner) has filed a divorce against them, actions they may take to respond to the petition and what will happen if they do not respond within the time limit provided on the form. It may also provide for certain restraining orders on what either party may not do with their finances, property, debts, etc during the process and restrict the parties from moving their children out of the State or changing their international passports without proper notification.

States like Florida and Connecticut provide forms for a dissolution of marriage or divorce where there are children and one for filing a divorce without children or minors.

• In California, other forms may include the Declaration under Uniform Child Custody Jurisdiction and Enforcement Act - for spouses with minor children.
• A proof of service form is usually mandatory before the court may proceed to hear the divorce case.

It is very important to read all forms carefully, review them and make the appropriate number of copies for filing, record purposes, and service on the Respondent spouse.

STEP 2: Serve the Respondent

The spouse against whom the divorce is filed must be properly served. Service may be accomplished by:

• Hand delivery: Any person above 18 years of age except the petitioner may deliver the divorce papers by hand to the respondent spouse. The signature of the respondent is very important when this method is used, to show they accepted or received service. The petitioner may engage the services of a professional process server, County Sheriff, family member or a friend. The service must be made on the respondent spouse personally except for where the respondent spouse has signed for someone else to receive service on their behalf or the document is delivered with someone who lives with the respondent spouse and is mentally and legally competent.
• Notice by mail with acknowledgment of receipt: The petition and other court papers may be mailed through the post office to the respondent and the post office’s attached slip to be signed on receipt by the respondent. This is usually mailed back to the petitioner as evidence that the documents have been received by the respondent. The petitioner must provide a valid address and use this method if the respondent is likely to accept service. Generally, the petitioner should not mail the documents but any other person above 18 years of age and not involved in the case may send the mail.

If the respondent spouse is impossible to reach after real efforts have been made to locate and serve them, the petitioner may make legal requests to the court to effect service some other way. In most States including Alaska, the self help centre may provide information on how to go about this.

STEP 3: Disclosure of Finances

In various State, both spouses must declare their finances to each other early in the divorce process so that decisions regarding the divorced couple’s finances are made from accurate, fair and transparent information. In California, within 60 days of filing the petition, the petitioner must also serve the respondent a full financial disclosure of assets, income, debts, property etc, and the respondent is also required to do the same and these disclosures are not required to be filed with the court. The California Courts provide forms for declaration of specific financial information. Either party may waive the right to receive disclosure.

STEP 4: Response

The respondent has a specific number of days provided on the summons within which they must respond to the divorce petition. California provides for a 30-day timeline, Florida, 20 days. Once the timeline for response has elapsed with no answer from the respondent, the petitioner may take the next steps by filing a request to enter default and other necessary forms and requests for orders on specific matters such as child custody and spousal support. Where the respondent does not answer the summons but there is a written agreement between the parties, the petitioner may attach the agreement, signed and notarized to the proposed judgment form and other necessary forms and documents.

The respondent may respond with a written agreement between the parties or respond without reaching an agreement with the petitioner. When the respondent responds without a written agreement, the matter goes to trial and both parties appear before a judge for the divorce hearing.

Justice Steven D. Ecker and Justice Raheem L. Mullins at a hearing in the Connecticut Supreme Court to determine the custody of cryogenically stored embryos created by a divorced couple while they were married. Courtesy of Courant.com

What Happens at a Divorce Hearing?

What happens at the divorce hearing often depends on the case between the parties, (whether or not there are contested issues), the court and the state. Generally, during a divorce hearing, the judge considers information and legal requests to rule on issues such as temporary custody, temporary injunctions (orders to restrain the other spouse from taking certain actions) contribution to spouse’s legal fees, issues relating to who occupies the marital home while the divorce is pending, and other issues that require resolution while the divorce is ongoing. The court will not resolve all the issues at the hearing. The judge would not require hearing evidence or testimony if the parties have agreed on various issues and are adopting a simplified divorce process. They may simply present the terms of their agreement before the Court.

Before granting a temporary order for custody of a child, the court may require evidence to be able to decide in the best interest, safety and wellbeing of the child. Where necessary, the court may issue an order for a child custody investigation and or appoint a neutral attorney to represent the interests of the child or children involved in the divorce.

In Florida, the Circuit Court may sit for several hearings with the spouses if they cannot agree or are raise contentious issues in their petition, answer or counter petition. The Judge may also order the couple to attend mediation meetings to resolve as many of their contentious issues as possible. If they are successful, the Judge may receive the terms of their agreement at a hearing.

In California, the spouses may be required to attend a settlement conference before trial to attempt reaching an agreement on as many contentious issues as possible.

Finalizing a Divorce

The divorce process can be long and very complicated, emotions often run high but once the court is convinced that the parties have met all necessary requirements and provided evidence as necessary, the Judge will decide on the divorce case and issue a final divorce decree. The Decree will spell out that the marriage has been dissolved, how the property will be distributed, who gets custody, whether sole custody or shared custody of children, visitation rights, alimony, child support, etc. The final order marks the end of the divorce process and outlines the rights and obligations of each party that may be enforced under the law.

Do I need an Attorney for a Divorce?

The divorce process can be overwhelming with so much information, procedures, regulations, forms, paperwork etc that require professional guidance and attention. Many states provide the option for a person to represent themselves in court but it is wise for a person going through a contentious and complex divorce to hire an Attorney. Even when the parties have agreed, an amicable divorce may require legal guidance as well.

What are the Estimated Fees for Retaining an Attorney?

Regardless of the location, attorneys and law firms determine their legal fees and this may vary for each firm within the same state.

Generally, a client may be required to pay a flat fee for consultation for the first in-office meeting and consultation with the attorney. They may also charge an hourly rate for a 15-minute phone consultation. It is difficult to ascertain in advance how much a lawyer would charge for the entire divorce case. Lawyers charge for every activity relating to the client’s work including, preparation of paperwork, e-mails, court preparation, discovery (collecting information from the opposing spouse’s lawyer), research, meetings, deliberations, etc.

Many factors go into calculating the applicable legal fees for an attorney in a divorce case, including – whether the divorce is amicable, or contentious with numerous issues to be resolved such as alimony, child custody, mediation, child custody evaluation, etc. It is important to get a quote from the Attorney’s office for a retainer or hourly rate at the beginning of the engagement.

A 2017 study showed some of the legal trends present in metropolitan areas, including the average hourly rate of lawyers and law firms. Courtesy of Legaltechnologytoday.org.

The Average Cost of Divorce in California, Florida, and Minnesota

• California is frequently top of the list for expensive states to get a divorce in the US with an average filing fee of 435 and the average attorney’s fee of $300 per hour. It may be possible to pay less but often, people pay more. The total cost of a divorce in California may fall within the range of $5,500 to $35,000 considering California has a long waiting period of 6 months and the divorce process may take at least 8 months.
• Average hourly fee for a Divorce Attorney in Florida is $250, meaning people could pay up to 350 per hour for legal representation in a divorce. The total cost of divorce could range from $4000 to $30,000 and an average completion time of 7 to 20 months.
• The filing fee for a divorce in Minnesota is almost as high as applicable in California but the average Attorney’s fee is less than $12,000 which is lower than is typical in California. The cost for a divorce in Minnesota can fall within the range of $3000 to $25000.

How Long Does It Take To File For Divorce?

This varies widely based on the state and the specific circumstances of the divorce. Uncontested divorces, where both parties agree on all terms, can take just a few months. Contested divorces, especially those involving significant assets or custody battles can take a year or more. Mandatory waiting or separation periods can also affect the timeline.

Can You File For Divorce Without Your Spouse Knowing?

While you can initially file for divorce without your spouse's knowledge, the legal process requires that they be informed or "served" with divorce papers soon after. This ensures their right to due process. If you cannot locate your spouse, many states have procedures for "service by publication," which means posting a notice in a local newspaper. However, the filer must demonstrate that they made a genuine effort to locate them first.