Are you considering divorce and wondering what the process will be like? While the deterioration of a marriage is heavy for a variety of reasons, understanding what options are available and the order of events that follow can help lighten some of that weight. "A divorce is the option which formally ends the marriage and where the matrimonial courts have the widest powers to deal with the parties’ financial separation, so unless there is hope of a reconciliation, or other significant reasons to warrant an annulment or to prefer a legal separation, a divorce is often the preferred option to end a marriage." says award winning family lawyer Laura Naser.
Meet the Expert
Laura Naser is a senior associate in the family law department of Penningtons Manches Cooper. She is the author of The Family Lawyer's Guide to Separation and Divorce - How To Get What You Both Want.
Your state's divorce laws will determine what steps you go through during the divorce process. "It is very difficult to know whether your expectations for settlement are reasonable, and often spouses get into arguments because they have misinformation but believe they are correct and can get entrenched in viewpoints and disputes," says Naser. "This is exactly why getting family law advice as early as possible is not only going to help set your expectations appropriately, but it should also help you avoid these kinds of disputes. The best thing you can both do is obtain separate independent legal advice."
While some variations exist, we've compiled a broad outline describing the sequence of events for most divorce cases from the original petition to the possibility of filing a motion to appeal. Marriages of short duration where there are no children or marital assets to split will see their way through the process quickly, others may turn into a long, drawn-out, and at times frustrating process. Every divorce is different, so along with these steps, you may have issues come up that pertain to your individual divorce.
Read on for our full breakdown of all the steps involved in the divorce process.
Legal Separation vs. Divorce
Legal separation is an arrangement by which a couple remains married but live apart, following a court order. "The court effectively relieves the couple from their relationship as [a married couple], and they are not expected to live together anymore," explains Naser. "This option is attractive to those who have religious or moral reasons as to why they would not seek a divorce, but who would like to somehow formalize their separation in the eyes of the law. The court can make some financial orders for the spouses, but not to the same extent that they can on divorce, so it is a more restricted option."
Some states do not have laws that allow a couple to participate in a legal separation. In those states, you are married until a court decides otherwise. If your state allows couples to separate legally when one or the other spouse leaves the family residence, your attorney will petition the courts for a separation agreement. This agreement protects the interests of both spouses and any children of the marriage by making sure that both parties meet their legal responsibilities to each other.
If your state doesn’t have laws that allow a legal separation, your next step would be to contact your attorney or file a petition with the courts yourself requesting a hearing so that a temporary separation agreement can be ordered. This is done by filing a petition for divorce in states with no legal separation laws on the books. Another resource to consider, on a state-by-state basis, are the legal foundations for civil annulment.
Divorce Process Steps
Original Petition for Divorce
To begin the divorce process, a document called “Original Petition for Divorce” is filed with your local court clerk. In some states, this is referred to as a “Letter of Complaint.” Both documents are requests that the court grant a divorce and list any relief the party filing for divorce feels they are due.
The original petition will identify the parties to the divorce and any children they may have. The party filing for divorce will have to state a reason as part of the petition or letter. In most states, this will be “irreconcilable differences” or “incompatibility.” The person filing for the divorce will be named the “petitioner” by the courts while the other party to the divorce is referred to as the “respondent” or, in some states, the “defendant.”
Naser suggests taking your time and having a lawyer assist in completing the paperwork as any mistakes can be costly. "Court staff cannot legally advise and will not help to complete the form," she adds.
The original petition or letter of complaint is then served on the respondent, normally by a member of the local sheriff's office. Once the respondent has been served, they have 21 days to hire an attorney and respond to the original petition for divorce. It is at this time that either party may ask for restraining orders, protective orders, or temporary orders pertaining to child support and alimony.
Temporary Divorce Orders
"This is where a judge has reviewed the application and approves that the spouses are entitled to a divorce, but they are not yet divorced," says Naser. "The process has a built-in set reflection period so unless there are exceptional circumstances to warrant expediting the process, the spouses must wait." The court can issue temporary orders that outline specific actions that must take place immediately and last until the final divorce hearing. Examples of things covered in temporary orders are child support, spousal support, and child custody. These orders are legally binding and not following them will mean finding yourself in contempt of court, where you can be jailed or fined according to the discretion of the judge.
Discovery is a legal mechanism designed for gathering information about either party to the divorce. Although states and their laws may vary, the four steps of the discovery process below are common and will probably become a part of your divorce.
- Disclosures: Every state has rules of civil procedure that determine the way disclosure is conducted. Attorneys for both parties request certain items from the other party. The list of items is sent to the opposition with 30 days to respond.
- Interrogatories: This is a list of questions that the attorneys send to the opposing side. Most states set limits on the number of questions and grant a response time of 30 days.
- Admissions of Fact: This is a written list of facts that is directed at the other party. The party receiving the list is asked to either admit to or deny each fact.
- Request for Production: This is when attorneys request documents such as bank statements, statements of income, and other information that they feel will benefit their client. The party receiving a request has 30 days to produce the materials. This part of the process can become a major obstacle to a swift divorce as people may not want to turn over personal information and can use delay tactics to stall.
During depositions, attorneys will take sworn testimony from the opposing party and any witnesses involved. Anything said during a deposition can be used in divorce court should an agreement not be met.
During mediation, both divorce parties meet to discuss any conflicts they may have and try to come to an agreement that meets the needs of both. The mediator is a court-appointed attorney or arbitrator and is there to negotiate a settlement between the parties. Naser advises seeking legal counsel before and during mediation, as mediators cannot provide legal advice but only serve as guides through the negotiations. "Mediation can take as many sessions as you need, so you can take a ‘let’s see how we go approach’ when committing to it," she adds. "In addition to being a much faster route to resolution than court proceedings, it is also cost effective compared to what can be very costly court proceedings."
If mediation didn’t work and unresolved issues remain, a trial date will be set. During the trial, both parties have the chance to argue their case before a judge, who will then examine all the evidence and make a decision based on what they feel would be a proper divorce settlement and outcome. "Court is the last resort and the only way for many spouses to force progress upon the other," says Naser, who advises settling out of court whenever possible. "If settlement has not been reached by agreement between the spouses by the final hearing, then the judge will make a decision. It tends to be one that neither spouse is particularly happy with and there is no guarantee that a judge will be with you."
Be amicable! Naser suggests focusing on the big-picture resolution rather than engaging in tit-for-tat, smaller disputes with your spouse that could worsen relations.
Most judges hand down orders within 14 days of the court date. If you don't hear something within a couple of weeks, contact your attorney and have them notify the court that you are still waiting for orders from the judge.
What Happens After Divorce
Once a judge has made a decision, the parties to the divorce will sign the final decree of divorce. The final decree states how any marital property will be divided, any orders pertaining to custody of the children, child support amounts, any spousal maintenance that is ordered, and any other issues pertinent to the dissolution of the marriage.
Carefully read the wording of the final decree before signing. If you wish to make any changes, now is the time to request that be done. If there are any mistakes in the way the decree is worded, you want to catch those before adding your signature.
If you feel that the court's orders are unfair, you may file a motion to appeal the order and request a new hearing. This motion is filed with the same judge that put in place the orders and not many judges are going to set aside their own orders, so don't be surprised if your motion is denied. In this event, you file a second appeal with the state appellate court.