Divorce Process: Fundamentals You Need To Know

Written by Laura Sands and Fact Checked by The Law Dictionary Staff  

The divorce process begins with either a complaint or a petition that is filed in court. Depending on the state where the divorce is being filed, as well as the grounds and individual circumstances involved in each case, the entire proceeding could take anywhere from several days to multiple years before a final decree is granted. Matters relating to the care and custody of minor children, as well as the division of property can also influence how long the entire divorce process will take. Many find the divorce process to be an emotionally taxing experience that may also result in a significant financial burden.

 

Dissolution of Marriage vs. Divorce

In some jurisdictions, the process of ending a marriage may be referred to as a dissolution, and in others, it is referred to as a divorce. While the end result is the same, a dissolution generally means all parties agree on the terms involved in ending the marriage; whereas, a divorce often means a court will have to set forth an order as to the custody of minor children, asset division, and other pertinent matters. In many states, however, dissolution and divorce mean the exact same thing.

A divorce is not automatically granted with the filing of a complaint or a petition. Even in cases where spouses agree to an amicable divorce and file a joint petition, the court will require a specific period of time before a final decree is granted. Typically, this time period ranges from 30 days (for an uncontested divorce in Alaska, for example) up to several years depending upon the specifics involved. Couples filing for divorce in Sacramento or San Diego, California may be eligible for a one-day divorce.

 

The First Legal Steps

Forms and information relating to the process of divorce can typically be obtained from the local county clerk’s office. One party may file alone or both parties may agree to file a joint petition. If one spouse is filing, that person becomes the petitioner or the plaintiff and the other becomes the respondent or the defendant.

In cases of one spouse initiating the divorce process, it is the duty of that petitioner to serve the respondent with paperwork notifying her or him that the legal effort to terminate the marriage has officially begun. In some states, the petitioner may personally serve the respondent with divorce papers, while others allow friends or family members to do so. Some jurisdictions, however, require service be administered by a professional process server.

After the respondent has been served, she or he is allowed a limited number of days to respond to the complaint or petition. The response may be in agreement with all of the terms set forth by the petitioner or the respondent may contest all or some of those terms. The respondent may also ask the court to consider her or his own requests for things like child support, spousal support, control of marital property, the division of assets, and so on.

 

Fault vs. No-Fault Divorce

All states offer some form of a no-fault divorce. No-fault simply means neither spouse is placing blame on the other for the demise of the marriage and both agree to its termination. Couples engaging in a no-fault divorce often cite irreconcilable differences (or another closely related term) as their sole grounds for divorce, meaning they believe the marriage is broken beyond repair. Some states are defined as true no-fault divorce states while others are optional no-fault divorce states. True no-fault simply means that no-fault is the only ground that can be claimed for divorce. Optional no-fault divorce means couples may still choose to assign blame or fault for the marriage’s demise to a specific spouse.

A list of true no-fault divorce states includes:
  • Colorado
  • California
  • Hawaii
  • Florida
  • Kansas
  • Iowa
  • Minnesota
  • Kentucky
  • Montana
  • Missouri
  • Nevada
  • Nebraska
  • Oregon
  • Wisconsin
  • Washington
  • The District of Columbia is also a true no-fault jurisdiction.

The no-fault divorce process offers a faster route to completion than a fault divorce does, which requires a lot more investigation and examination in order to determine things like property division and child custody.

 

Grounds for Divorce

While no state currently requires grounds for divorce beyond irreconcilable differences, a spouse divorcing in a no-fault state may choose to submit other grounds to be examined by the courts before making a decision on:

  • The custody of minor children
  • Visitation rights
  • Property distribution
  • Spousal support

In fault divorces, some of the most commonly stated grounds include:

  • Abandonment
  • Adultery
  • Cruelty
  • Criminal conviction
  • Mental Illness
  • Substance abuse

When the aforementioned grounds for divorce are submitted to the court, a lengthy divorce process can be expected. A plaintiff is required to provide evidence supporting each claim documented in the original complaint. Lawyers and investigators are often hired to find evidence, as well. After grounds are submitted, fault divorce cases enter a discovery phase where time and resources are devoted to further investigation to help the courts make an informed judgment on the terms of the divorce.

 

Divorce Mediation

The step-by-step process of obtaining a divorce varies according to the laws of the state where the petition is filed. Other circumstances, such as whether a couple has children together, whether the divorce is being contested, specific grounds for divorce, assets that need to be divided, long and short-term financial plans, domestic violence claims, and other unique concerns are officially addressed during the divorce process. Many couples request mediation assistance in order to help sort out custody, business, and financial matters in a way that both parties deem to be fair. Some couples may also be ordered by the court to mediate the terms of their divorce with a third-party professional in an attempt to reach an agreement that all parties are comfortable with and that a judge will agree to.

 

Equitable Distribution States

In an equitable distribution state, marital assets are distributed according to what is fair. It should be noted that fair may mean equal, but such isn’t always the case. Spouses are encouraged to reach a fair agreement on the distribution of assets on their own, but the court may also do so if both parties are unable to reach an agreement. A list of equitable distribution states is as follows:

  • Alaska (NOTE: Spouses may choose to abide by community property guidelines.)
  • Alabama
  • Colorado
  • Arkansas
  • Delaware
  • Connecticut
  • Georgia
  • Florida
  • Illinois
  • Hawaii
  • Indiana
  • Kansas
  • Iowa
  • Kentucky
  • Maryland
  • Maine
  • Michigan
  • Massachusetts
  • Mississippi
  • Montana
  • Minnesota
  • Missouri
  • New Hampshire
  • Nebraska
  • New York
  • New Jersey
  • North Dakota
  • North Carolina
  • Ohio
  • Oregon
  • Oklahoma
  • Rhode Island
  • Pennsylvania
  • South Dakota
  • South Carolina
  • Utah
  • Tennessee
  • Virginia
  • Vermont
  • Wyoming
  • West Virginia

 

Community Property States

In community property states, all property gained during the marriage equally belongs to both spouses and is, therefore, split 50-50 during the divorce process. A list of community property states is as follows:

  • California
  • Wisconsin
  • Arizona
  • Louisiana
  • Nevada
  • Idaho
  • New Mexico
  • Washington
  • Texas

 

Divorcing With Children

Couples who wish to divorce and who have minor children may be required to take parenting classes before the divorce process can be completed. Places where parenting classes are mandated statewide during divorce include:

  • Alaska
  • Connecticut
  • Arizona
  • Delaware
  • Hawaii
  • Florida
  • Illinois
  • Idaho
  • Minnesota
  • Massachusetts
  • Nebraska (Classes are mandatory only in contested divorces)
  • New Jersey
  • New Hampshire
  • Tennessee
  • Virginia
  • Utah
  • Washington
  • Wisconsin
  • West Virginia

In several other jurisdictions, mandated parenting classes during the divorce process may not be statewide, but certain counties within that state may require parenting education before a divorce is granted.

Even in places where classes are not mandatory, an individual judge may order some form of parenting education before a divorce is granted.

 

What to Expect During a Divorce

The Mental and Emotional Toll

The divorce process can be mentally and emotionally challenging for both spouses, as well as for the couple’s children and extended family members. Most people view marriage as a defining characteristic of the family structure. The ending of a marriage may cause all parties to experience emotions like stress, uncertainty, and sadness. Conversely, many couples and their children report feelings of relief when a divorce is finalized and couples begin living separate lives. Typically, these feelings are associated with the end of marital strife that has caused constant tension and unrest in a home environment.

 

When Friendly Divorces Go South

Even though some divorces begin rather amicably, many become contentious after the divorce process has begun. Often, this is due to disagreements over child custody and visitation issues or property distribution. While these things may have been agreed upon at the onset of divorce, one or both spouses may experience a change of heart as the process is underway. Other lifestyle changes, like the knowledge of a spouse’s new romantic relationship or one’s sudden increase in income, can interrupt the divorce process as couples reevaluate the terms previously agreed to.

 

The Financial Burden Of Divorce

Financially, the divorce process can also have a major impact on one or both spouses’ standard of living. Court-ordered payments, such as spousal and/or child support, can range from a few hundred dollars per month to tens of thousands of dollars per month depending on the income and earning potential of each spouse. Other costs such as relocation expenses, the division of property, the division of assets and debt, attorney fees, and other financial obligations can be a heavy burden on one or both spouses, as well.

 

Need More Information?

Divorce is a major life decision, and the legalities involved can be complex. The information offered here does not constitute legal advice but is offered as a guide for what one can expect when terminating a marriage. Anyone considering divorce is advised to seek qualified legal counsel in the state where the divorce will be filed.

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