How to Start a Divorce

How to Start a Divorce

by Ronna L. DeLoe, Esq., August 2016

You and your spouse are experiencing some marital problems and you've tried marriage counseling. You've even spoken with a trusted priest, reverend, or rabbi.

After these efforts to resolve your issues have failed, you now are thinking about getting a divorce, but you don't know where to start. What should you do first?

The First Steps in Starting a Divorce

Filing for divorce is never pleasant, but if you have the right assistance or know-how, you'll be prepared to start your divorce. Knowing what to do reduces stress, so it helps to become familiar with some basic divorce procedures.

The steps you need to take are similar in most states. These first steps include:

  1. Getting a divorce attorney. A divorce attorney can do your entire case or can be hired just to review documents you've printed from an online legal resource, like LegalZoom. It's important to have an experienced family law attorney review your documents, no matter how you proceed.
  2. Preparing a petition against your spouse. In some states, the document that starts the divorce process is called a “complaint" and not a divorce petition. They're the same because they both start the divorce when served with or after a summons.
  3. Giving details in the divorce petition. The petition must contain the names and birthdates of your children, and the addresses of everyone in your immediate family. It should state what you want from the court, including spousal support, custody, visitation, child support, life and health insurance, and real and personal property.
  4. Stating the grounds of your divorce in the petition. This includes whether you are filing a “no-fault divorce," which means there are “irreconcilable differences" or that the marriage is “irretrievably broken." In some states you can still list grounds of adultery, abandonment, or cruel and inhuman treatment.

How to File for Divorce

The next steps in proceeding with a divorce are:

1. Serving the summons on your spouse. Your spouse is called the “respondent" or the “defendant," depending on your state. Sometimes the summons will be served with the petition or complaint. You cannot serve the divorce papers on your spouse. A process server, a sheriff, or a person who is at least 18 years old and not related to you should serve the papers.

It is prudent to hire a process server because “service of process" has to be done correctly. This includes serving your spouse with the divorce papers in the proper manner, which is often referred to as “in-hand delivery."

2. Filing the divorce forms. The forms must be filed with the proper clerk in a timely manner. The person who served your papers, or your process server, must also file a properly filled-out affidavit of service, which can be tricky. This is another reason why it's a good idea to have a process server start the action for you.

3. Waiting for your spouse to respond. The respondent has 30 days in most states to file a response. The response may be called an “answer" in some states and, in it, your spouse may deny the statements in your petition or admit to some of them. The response can also contain a “counterclaim" if your spouse wants to seek some of the same things you're seeking from the court.

The Next Steps in an Uncontested Divorce

If the divorce is “uncontested," you and your spouse agree on how most or all of the major issues should be resolved. You memorialize your understanding in a settlement agreement, which is often prepared by a family law attorney.

You then bring the settlement agreement to the divorce court along with the necessary divorce papers. Divorce papers are different in every state, so, if you have a family law attorney, have your attorney prepare the papers.

The judge reviews the agreement along with the divorce papers. If everything is in order, the judge will allow you to get a divorce.

The Next Steps in a Contested Divorce

A “contested" divorce is more time-consuming, difficult, and expensive than an uncontested divorce. A divorce is contested if you and your spouse can't agree to all the major issues, such as custody or financial issues, and may have to be decided by a judge.

If some issues can't be settled, you'll probably have what is called “discovery." Discovery seeks to find out as much information as possible from the other spouse. Either you or your spouse, or both, can use discovery.

Discovery can be done by using:

  • Written interrogatories. One spouse sends the other a list of questions, which is usually quite lengthy. The spouse who receives the questions has to answer them. Interrogatories are used for finding out unknown or secret information, such as financial information.
  • Examinations before trial or depositions. A “deposition" is where the attorney seeking the deposition asks questions of you or your spouse to gather information. You or your spouse is sworn in by a court reporter, and each of you has to answer under penalties of perjury even though a judge isn't present. The testimony can be used against you and your spouse in court.
  • Admissions of fact. If your spouse sends you questions in an admission of fact, you can either admit or deny the information in the questions. You can also add explanations to your answers.
  • Request for production. These are requests for you or your spouse to produce items for inspection. This is often used to obtain financial information and is time-consuming.

After discovery is complete, if you and your spouse haven't been able to settle, your case is put on the court's calendar for trial. It's still possible to settle your case before trial, but the longer it takes to settle, the more legal fees you will have to pay.

Another Way to Deal With Marital Problems

If you don't want to go through a divorce, you may decide to have a legal separation from your spouse. It isn't final, like divorce, and some states actually require you to be legally separated for a year or more before you can get divorced.

If you want to try a legal separation, you should consult a family law attorney, who can prepare a separation agreement for you. The separation agreement contains your rights and responsibilities—as well as your spouse's—as if you were divorced. The difference is that you're still legally married but living apart.

If you're not sure you want a divorce, a legal separation may be the best way to see if you can resolve your marital issues.

If you're getting divorced, LegalZoom can help you through our online divorce process. The process begins by completing an online questionnaire. We'll help create your documents and provide easy-to-follow instructions on how to file all necessary documents with the court.