How do I get a divorce?

This is a very brief explanation of the divorce process. Many details have been excluded from this broad overview because most divorces are unique and have very different requirements, forms, procedures, length of times, etc.

Often, but not always, the first step is separation. Couples have the option of obtaining:

  • a legal, court-ordered separation agreement   
  • separating with a nonlegal mutual understanding

A legal separation is recommended. It provides a court ordered separation agreement that outlines the rules of the separation. For example; who gets what, what are the visitation arrangements, the amount of support that should be paid, the division of marital debt, etc. A legal separation is never a substitute for divorce, it simply provides a court-ordered separation agreement to abide by until the Marital Settlement Agreement is put into place with the Final Divorce Decree.

Most divorces begin with filing a Complaint for Divorce, Petition for Divorce, or Petition for Dissolution of Marriage, whichever terminology applies in your state.

Filing a complaint/petition allows the court to recognize your intentions to divorce, as well as making sure the other party (your spouse) is aware of the divorce. If your spouse has not agreed to file a Waiver of Service of Process, then he or she will need to be served a Summons stating the filling spouse's intentions to obtain a divorce. Typically the Summons is served by the sheriff or a private process server.

In most cases it does not matter who is filing for the divorce. Issues like the division of property, support obligations and custody arrangements are not affected. By completing the complaint/petition and filing it with the court you will be providing the necessary information to get the divorce process started. It also establishes the grounds for which the divorce is taking place and reference a copy of a Marital Settlement Agreement.

If the nonfiling spouse agrees with what is detailed in the Marital Settlement Agreement, you file what is called an uncontested divorce. In most states the court requires the filing of an Appearance, Consent, and Waiver Form by the nonfiling spouse. This form has several functions. It allows the nonfiling spouse to acknowledge to the court that he or she understands that the Complaint/Petition has been filed (this is the step that eliminates the serving of divorce papers). It allows the nonfiling spouse to acknowledge to the court that he or she meets the state requirements for the divorce and that he or she gives consent to have the Current Marital Settlement Agreement drafted into the Final Divorce Decree.

The above may sound very simple. Most lawyers will say that no divorce is ever simple, but an uncontested divorce is by far a less complicated, less stressful and a less traumatic experience than a contested one.

The difficulty in divorce arises when one spouse does not want the divorce or does not feel as though he or she is being treated fairly in the Marital Settlement Agreement.

Disputes that arise and continue unresolved will lead to a contested divorce. Your lawyer will become your teammate in a negotiating game to settle the disputes. If your divorce gets to a point where one or more disputes cannot be settled out of court, it will be time to go to the Family Court in your county and let the Judge make the decisions for both of you. Once the Judge makes the decisions they are final and become part of the Marital Settlement Agreement, at which point the Final Divorce Decree will be granted.

The typical issues that are disputed and end up being decided by the court are; the child support obligation, the spousal support obligation, the division of the assets, the child custody and visitation arrangements, and the distribution of debts.

As mentioned before, this is a very brief overview of the divorce process. There are several other steps and forms that may be needed to be filed along with possible court appearances. When deciding to get a divorce it is always best to hire a lawyer that has experience in family law matters. A lawyer can guide you through the process in a professional and organized manner.