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How Do I Get a Divorce?
This is a very brief explanation of the divorce process. There is a
lot of detail excluded from the explanation because all divorces can
be very unique and carrying with them very different requirements,
forms, procedures, length of times, etc.. So, please read this and
understand that it is our attempt to educate you from a very
broad perspective.
Before getting a divorce you, or you and your spouse should decide
that you absolutely want a divorce. Even though in the
divorce process, everything is reversible, it is
important that you realize that the road is sometimes very long and
can be a difficult one to travel.
Often, but not always, the first step is the separation. Couples have the option of obtaining a legal separation in most states or just separating with a non-legal mutual understanding. A legal separation is recommended and will provide a court ordered separation agreement that will outline 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 the filing of the Complaint for Divorce,
Petition for Divorce, or Petition for Dissolution of Marriage, which
ever terminology applies to your state.
The filing of this form 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 serving service.
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.
The Complaint/Petition will establish the grounds for which the
divorce is taking place and reference a copy of a Marital Settlement
Agreement.
If the non-filing spouse agrees with what is detailed in the Marital
Settlement Agreement, you file what is called an uncontested divorce. In
mosts states the court requires the filing of an Appearance, Consent,
and Waiver Form by the non-filing spouse. This form has several
functions. It allows the non-filing 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
non-filing 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 simply can not 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 as follows; 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 and he or she will guide you through the
process in a professional and organized manner.
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