Once you have made the decision your marriage is over, filing for divorce is generally the next step. But divorce isn’t just the emotional end of a relationship. It’s also the dissolution of a legal contract, complete with a signed court order dictating how you and your spouse will share your assets and the custody and support of your children.
You may be embroiled in the emotional ordeal of ending your marriage, but the court is primarily concerned with ensuring that you and your spouse resolve your marital contract legally and fairly. And this legal resolution can have a significant impact on your finances and future.
Filing for divorce is a significant step that marks an emotional and legal turning point in your life. While the process can feel overwhelming, understanding what to expect can help you navigate it more confidently. From meeting residency requirements to pursuing litigation, each step will play a critical role in determining the outcome of your divorce process.
Meeting State Residency Requirements
To file for a divorce, you must first meet state residency requirements. Residency requirements determine state jurisdiction in making decisions regarding your divorce, and these will vary from state to state.
You will file a petition for divorce or divorce complaint at the local clerk’s office in the county or city where you or your spouse reside. The clerk’s office may ask for residency verification, so you should be prepared by contacting your local court to understand what documents they will accept as verification.
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What Are the Grounds for Your Divorce?
To file for divorce, you must have a legally-recognized reason for it, called “grounds.” Some states allow for fault-based grounds, where one spouse alleges marital misconduct as the reason for the breakdown of the marriage. However, fault-based grounds are more than mere allegations. They must be proven in court for the divorce to be successful.
All fifty states also have some form of no-fault divorce option. No-fault divorce doesn’t require any allegation of fault. A couple may agree that irreconcilable differences led to the breakdown of the marriage, or they may have to fulfill some other requirements before they can file for divorce. If you are choosing to file for a no-fault divorce, it is important to understand your state’s laws and requirements concerning no-fault divorce before you file.
Contested Vs. Uncontested Divorce – What is the Difference?
An uncontested divorce means that you and your spouse agree to the divorce and have worked together to reach an agreement on key terms. An uncontested divorce can still involve some disagreement and negotiation between you, but it doesn’t ultimately rely on the court to make your final decisions..
A contested divorce, however, is one where you and your spouse cannot agree on grounds or other significant aspects of your divorce. In a contested divorce, the process will be similar to other court proceedings. You and your spouse will each present arguments to the court, and a judge will make the final decisions, which both of you must then abide by.
While your divorce may begin as a contested divorce, you can come to an agreement that works for both parties and avoid litigation at any point during the process.
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Filing for Divorce
When filing for divorce, the required forms will vary by state and jurisdiction. Depending on what state you are filing in, the court may even offer packets of documents designed for your family circumstances. However, the filing process itself is usually similar from jurisdiction to jurisdiction.
Preparing the Petition
Petitioning the court for a divorce is the first official step in the divorce process.
The Petition will usually reflect general information about you (the Plaintiff), your spouse (the Respondent), the grounds for your divorce, and your requests for “relief,” or what you are asking for in the way of property division, child support, and spousal support. You may also be asked to state how long you have been a resident of the state, the date and place you were married, how long you have been living separately, the names of your children, and any other information required by your state.
Once the Petition is signed and notarized, you will file it with the appropriate family court and pay a filing fee.
Serving Your Spouse
Serving a copy of the Petition to your spouse is the second step in the process, ensuring the court that your spouse has officially been notified of your intentions to divorce.
After you have filed the Petition and other paperwork with the clerk, the court will issue a summons, which must be served to your spouse with the Petition. This service can be completed through the sheriff’s office, a private process server, or certified mail. You will then need to file proof of that service with the court.
If you can’t locate your spouse despite diligent effort, you can request the court’s permission to serve your spouse by publication. If the court agrees, a notice of the Petition must be published in a court-approved newspaper for a specified time period. After the publication period, you will file an affidavit of publication with the court.
Your Spouse’s Response
Your spouse will have a specified period of time to respond to the Petition.
They will have the option of responding in three different ways.
- Filing an Answer
The Respondent spouse files a formal written response, called the Answer, acknowledging or denying claims made in the Petition. The response can also include defenses to allegations made in the Petition. - Filing a Counterclaim
The Respondent spouse files a Counterclaim with legal grounds for divorce and requests for relief, allowing them to present their own terms for property division, child custody, and support. The Counterclaim can be filed alongside the Answer. - Agreement to the Divorce Terms
Instead of contesting the terms of the divorce in the Petition, the Respondent spouse can agree to them by signing a waiver or agreement to the terms, expediting the process.
If the Respondent spouse does not answer within the required timeframe, you may ask the court to proceed with a default judgment based on your terms.
If temporary relief will be needed for child custody and support or spousal support during the process, one spouse can also request a temporary court order addressing these needs while the divorce is pending.
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Formal Discovery
Discovery is the process of gathering and sharing information and evidence in preparation for negotiation or a trial. This information sharing ensures that both you and your spouse have access to each other’s relevant financial details to make informed decisions. Both sides can then exchange settlement proposals and make revisions through your attorneys or agree to work collaboratively through joint meetings.
Formal discovery can involve many different tools, such as interrogatories, requests for the production of documents, depositions, subpoenas, or even physical and mental examinations. if one party isn’t complying with discovery requests, the other party may need to file a Motion to Compel.
However, there are limitations to what can be requested through formal discovery. Requests must be relevant to the case, and each party can request a protective order to limit its scope or protect sensitive information from being disclosed.
Negotiation and Settlement
At this point, you and your spouse may attempt to negotiate a settlement agreement.
You can negotiate the terms of your agreement yourself, through mediation, or with the assistance of separate attorneys who will guide the process by reviewing your situation, advising you of your legal rights and obligations, and helping you identify key issues that will need to be resolved, such as
- Custody and visitation of your children
- Child support
- Division of your marital assets and debt
- Spousal support, or alimony, if warranted
Drafting and Signing a Settlement Agreement
If you and your spouse can agree to the terms of your divorce, your attorneys will draft a detailed settlement agreement reflecting all your agreed-upon terms regarding property division, child custody, child support, spousal support, or any other relevant issues. You will both review the agreement and even make changes at this point.
Once you both understand and agree upon all the terms, you will sign the agreement and file it with the court. A judge will review the agreement to ensure fairness and compliance, and if the judge approves, the settlement agreement will be incorporated into a final divorce decree. In some cases, the court may require a hearing to approve the agreement and finalize the divorce.
Litigation
If you and your spouse cannot negotiate divorce terms amicably and disagreements persist, your case will likely proceed to litigation where a judge will make these final decisions.
With the help of your attorney, you will prepare a list of witnesses, documents, and evidence to be presented to the court. Both attorneys will present an overview of what they are intending to prove to the court and then provide evidence and witnesses that support it.
After cross-examinations and summaries, the judge will make decisions based on the evidence and arguments presented. These decisions will be formalized into the final decree, which legally ends the marriage. Both parties must then comply with the judge’s decisions.
Compliance and Enforceability
A divorce decree is a legal court order. If either party fails to comply with its terms, the other party can file a motion to enforce the court’s orders. Enforcement can include income withholding, fines and penalties, seizure of assets, modification of the orders, or, in extreme cases, jail time for contempt.
Why Having an Experienced Family Law Attorney is Critical
A divorce is the intersection of decisions that will impact your emotional, legal, and future financial well-being. In the middle of the turmoil, it should be no surprise that individuals may not always make these decisions in their best interests. This is when having a professional legal ally is essential.
At Melone Hatley, P.C., our experienced family law attorneys are dedicated to being your partners during this challenging time and are committed to providing knowledgeable and compassionate guidance throughout the entire divorce process. With convenient locations throughout Virginia, Tampa, Florida, and Columbia, South Carolina, we are here to protect you when you need it most. Schedule a free consultation with one of our Client Services Coordinators today.
Schedule a call with one of our client services coordinators today.
