How Does the Divorce Process Actually Work?

You are not considered divorced until a judge signs a divorce decree, which marks the official end of your marriage. Apart from dissolving the marital bond, divorce proceedings also address other critical aspects, such as the division of marital property, spousal support, and child custody arrangements. 

40-50% of all marriages in the U.S. end in divorce, yet many people walk into the process blind. Divorce can be a complex and time-consuming process, so it can be important to familiarise yourself with the steps involved. 

This comprehensive guide will take you through the divorce process step by step, helping you understand what to expect and enabling you to be prepared for the journey of ending your marriage.

Separation

Divorce is not an instantaneous event; it requires time to finalise and what starts is a separation. Many states have waiting periods, during which a certain amount of time must elapse between the moment you separate from your spouse or file for divorce and when the court officially declares your marriage over. 

The duration of the waiting period can vary significantly depending on each state, ranging from a few weeks to up to a year. Some jurisdictions do not even impose a waiting period at all. 

During the waiting period, if your state requires you to take one, you may either have an informal separation where you live apart, or you may have a legally separated status, which entails a written agreement or court order governing matters such as finances, custody, and support. 

Establishing whether your state requires a separation period and understanding its definition is crucial to avoid unnecessary delays in your divorce proceedings. If you have any uncertainties, it’s advisable to consult an experienced divorce attorney who can guide you through this aspect of the process based on your specific jurisdiction.

Deciding the Grounds for Divorce

When you are ready to initiate the divorce process, you will need to decide whether to file for a fault or a no-fault divorce. All states allow for no-fault divorces, where neither party is required to prove any specific wrongdoing as a reason for divorce. 

Irreconcilable differences between you and your spouse serve as sufficient grounds for a no-fault divorce, which can be granted even if your spouse does not want to dissolve the marriage. 

Some states also permit fault divorces, which are based on specific grounds such as abuse, abandonment, or adultery. Fault divorces can be more complicated and costly, but you might opt for this route for various reasons, such as wanting to establish a record of your spouse’s wrongdoing or seeking to influence the court’s decisions on matters such as asset division or custody arrangements. 

Ultimately, the choice between fault and no-fault divorce depends on your circumstances and the legal options available in your state.

Filing for Divorce

When you file for divorce, this requires you to submit the necessary paperwork to the court to formally initiate the dissolution of your marriage. Before filing, you must have fulfilled any waiting period requirements. Failure to do so could mean you have to restart the whole process from square one. 

File your petition for divorce in the appropriate court, typically the family or divorce court in the county where either you or your spouse resides. Most jurisdictions have residency requirements that mandate a specific period of residence before you can initiate divorce proceedings there. 

When filing for divorce, you will need to provide essential information, including: 

• The names and contact details of you and your spouse
• The grounds for divorce
• Information about any children involved (such as their ages and locations)
• Your desired outcomes regarding:
  • Property division
  • Child custody
  • Potential alimony or child support. 

Filing for divorce usually involves a fee, the amount of which varies depending on your location. In case paying the fee presents a financial burden, you can request a fee waiver.

Serving the Petition

Once you have filed for divorce, your spouse receives formal notification of the proceedings. This can be accomplished by having the sheriff serve the divorce papers or hiring a process server for this purpose. 

In situations where you are unaware of your spouse’s whereabouts, you still need to make reasonable efforts to provide them with notice of the divorce filing. This can be achieved by obtaining court permission to publish notices in local newspapers. You need to be able to provide proof to the court that your spouse has been served with the divorce papers or that you made a genuine attempt to serve them.

Response or Default Divorce

After being served with the divorce papers, your spouse typically has a specific timeframe within which to respond. If your spouse fails to respond, you can petition the court for a default divorce, also known as an uncontested divorce. 

In cases of uncontested divorce, the court will proceed with granting the divorce and may award you the requests made in your initial petition, effectively dissolving your marriage. 

However, if your spouse does respond, they will submit an answer to your initial petition for divorce. The answer may indicate agreement or disagreement with your assertions, and your spouse may also file a counter-complaint introducing new allegations or information for the court’s consideration. 

If your spouse responds, they are generally required to serve you with a copy of their response and provide proof of this service to the court to continue with the proceedings.

Temporary Hearings

In jurisdictions where there is a significant waiting period between separation and the final divorce trial, temporary hearings may be held. These hearings occur after filing for divorce but before the formal court proceedings, and they address urgent matters that absolutely cannot wait including restraining orders and children. Both spouses need to be present.

Discovery and Preparation

This entails gathering evidence, which may involve subpoenaing documents, conducting depositions, or sending interrogatories to the opposing party. This step happens if you and your spouse are not on the same page and decide to involve attorneys. 

Settlement or Trial

Before your marriage can be officially dissolved, you will need to reach a settlement agreement with your spouse or proceed to trial if an agreement cannot be reached. 

An uncontested divorce, where you and your spouse agree on all issues related to the divorce, is generally the most favourable outcome. Opting for an out-of-court settlement can save you time and money. In such cases, a mediator can help facilitate negotiations and reach a mutually satisfactory settlement. 

However, if you and your spouse are unable to agree on all aspects of the divorce, the case will proceed to trial. During the trial, each party will present their arguments, including witnesses and evidence. The court will then consider the details of the case, as well as relevant state laws governing child custody, asset division, and other contested issues, to make a final determination.