The situation of the parties getting divorced determines the necessary steps required to obtain the divorce. Where the parties have been married for a relatively short period of time, have no children and have little property or debts to settle, the divorce will be less involving. Where there are minor children, and the marriage has lasted for quite a long time and they have significant property or debt to divide, the divorce process will be so involving. The divorce process should also be shorter where both parties want and agree to the divorce. If one party is blind-sided by receiving divorce papers they might respond by doing whatever they can to prolong the process. Finally, the more the parties can agree on between themselves the smoother and quicker their divorce. If the couple is bogged down in fighting and disagreements over anything and everything, the process will be slower.
Filing for Divorce
Filing a petition is the first step in the process of divorce. One of the spouses will have to be the one to file a petition with the court asking for a divorce; even when both spouses have mutually agreed that they want to get divorced. The petition will state the grounds for the divorce.
The grounds for divorce will vary depending on the jurisdiction. All jurisdictions allow for some type of no-fault grounds such as “irreconcilable differences”, but only a few states still consider fault grounds for divorce, such as adultery or abandonment. Your lawyer can tell you whether fault grounds are available in your state, and if so, whether or not it makes sense to file for divorce on fault grounds.
Once the Petition is filed, it is served together with the Notice to Appear, notifying the Respondent of the case. The respondent will then acknowledge receipt, and then will be required to enter an appearance and file a defence and/ or a cross-petition. After the respondent has filed a defence, the case is set down for hearing. This means that the petition is defended.
If the petitioner is not able to serve the respondent or the respondent has been served but has not entered an appearance or filed a defence, the petitioner will then file an application seeking a date for hearing and/ or any other directions from the court. If the court is satisfied that the petitioner made sufficient effort to serve the respondent or that the respondent was served but did not enter an appearance or file a defence, the case is set for hearing.
Temporary orders for support and custody are sought by a spouse who depends on the other for financial support or will have custody of the children. The dependent spouse asks the court for these orders. For instance, if a stay at home mother files for divorce, she will need financial support from the husband to enable her to continue paying household bills. She will also need a temporary custody order and a temporary child support order for the kids.
Normally, the temporary order is granted within a few days and remains effective until a full court hearing. If the party that seeks the temporary court order is the same party filing the petition, they should file it at the same time. If the party seeking the temporary order did not file the petition, they should file their request for the temporary order as soon as possible.
The party who files for divorce has to also file for proof of service of process. Service of process is a document that shows that a copy of the petition was given to the other party. It can either be very dignified or very undignified or anywhere in between. If it is a mutual agreement between the divorcing parties, the party who files the petition ill arrange for service of process to the attorney of the other party. Having a process server visit one’s spouse at his or her place of employment to serve papers can be categorized as undignified.
The party who receives the service of process needs to file a response to the petition. If a spouse was seeking a divorce on fault grounds and the responding party wants to dispute those grounds, he or she will need to address it in the response. The party responding may choose to dispute the reasons named by the party filing the petition as being the grounds for seeking the divorce, or they may choose to assert a defence to the grounds. Any disagreements regarding property division, support, custody or any other disagreement, they should state it in the response.
The parties try to negotiate their differences if they do not agree on all the issues. The court may schedule settlement conferences in an attempt to move the parties towards a final resolution of all the issues. For example, if the parties disagree on child custody and visitation, the court may also order mediation, evaluation of the children and parents by a social worker or other court employee and that a lawyer or guardian ad litem be appointed to represent the children. Other issues that may need to be negotiated are the property division and any spousal support.
Any issues the parties absolutely cannot resolve between themselves will have to be decided at a trial. However, going to trial will take longer, cost more money, and have less predictable results so it is probably best to avoid going to trial if possible.
The order of dissolution ends the marriage and spells out how the property and debts are to be divided, custody, support and any other issues. When the parties negotiate their own resolution to all of the issues, they will draft the order of dissolution and submit it to the court. If the order of dissolution complies with legal requirements and both parties entered into it knowingly and willingly, then the judge will approve it. Otherwise, the court will issue an Order of Dissolution at the end of the trial.