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Guide to Divorce
An uncontested divorce, unlike a contested matter, is one in which the parties have reached an agreement regarding the major issues in the divorce without the aid of the courts. Usually, this means that parties themselves, with the aid of their attorneys, have created a marital settlement agreement outlining the terms of their divorce. However, pro se parties are often able to craft a marital settlement agreement without the aid of an attorney. Additionally, another kind of uncontested divorce is one in which one spouse cannot be located or has elected not to participate in the divorce process.
Step One: Filing a Petition and other Forms:
Filing a petition for a divorce, also called a petition for dissolution of marriage, is a relatively simple document that can be prepared by an attorney in a short period of time. If a litigant does not wish to engage the help of an attorney, the domestic relations division of the court clerk's office may have form petitions for divorce that can be filled out or can guide a litigant in drafting his or her own divorce petition. Finally, sample divorce petitions are available online through a variety of legal document providers.
In addition to filing a divorce petition, each jurisdiction has a veritable trove of additional forms that need to be filled out. Again, the court clerk's office is a pro se party's biggest ally. Many court clerks prepare a "divorce" packet that consists of all the forms that need to be completed, along with instructions on how to properly fill them out and where to file them, and a list of the filing fees for each type of document. Generally, one can file for divorce in the state and county where they were originally married or the state and county where one of the parties currently resides. Before filing paperwork and paying hefty court filing fees, check with the court clerk to make sure you are filing for divorce in the correct jurisdiction.
Typically, the following information is needed in a Petition for Divorce in the following order:
- The names, birthdates, and addresses of both parties;
- The date and location where the parties were married;
- The date the parties separated;
- The names and birthdates of any children born of the marriage;
- A brief description of the assets owned by the parties;
- A brief description of the debts owed by the parties; and
- A list of the relief requested by the Petitioner (divorce, sole custody, child support, spousal support, etc).
Other forms that may need to be completed at the time the Petition for Divorce is filed include a Civil Summons (so that the opposing party can be served with a copy of the petition), and a Military Service Affidavit (stating that your spouse is not serving overseas in the military). Additionally, some states have their own tracking forms to keep tabs on the numbers of marriages that end in divorce.
StepTwo: Serving Papers On Your Spouse and Proof of Service:
Most states require that the party filing for divorce attempt to personally serve their spouse with the requisite divorce petition several times before reverting to other forms of service. If you and your spouse are proceeding amicably with your divorce, you can simply hand him a copy of the filed documents and ask that he file an appearance at the court clerk's office. An appearance is your spouse's formal entry into the case and considered proof of personal service. If you do not feel comfortable serving your spouse on your own, you can enlist the services of a legal process server (the court clerk can recommend one or one can be found easily online) or the local sheriff's office to serve the documents on your behalf. Be sure to file the "affidavit of personal service" prepared by the process server with the clerk of court.
In the event that your spouse cannot be located or is evading service of process, you may be able to serve him via publication. Publication service generally requires that a classified ad announcing that your spouse has been named in a legal action (the divorce) run in a local paper for a certain period of time. Once this requirement has been filed, your spouse will be deemed to have been served with notice of the divorce. A clerk of court can assist you in setting up service by publication.
How Your Spouse Can Respond
Once your spouse has filed an appearance in the divorce or prove that he was served has been filed, he can then, if he chooses, file a response to your divorce petition. While the party served is generally not required to file a response or counter-petition for divorce of his own, he may wish to do so in order to protect his own legal interests. For example, any allegations in your initial divorce petition might be deemed to be true is not specifically refuted by your spouse in a formal response. Additionally, unless your spouse files a counter-petition for divorce, the case will be terminated upon your voluntary dismissal of your petition. In that regard, if your spouse is adamant that he wants a divorce as well, it is in his best interests to file his own petition for divorce requesting specific relief.
Next Page: Negotiating the Marriage Settlement Agreement
- The content of this guide is provided for informational purposes only. If you need help with a divorce question, please click here to consult with a Divorce Lawyer in your area.