What is the Procedure for Obtaining a Divorce?

If you’re considering getting a divorce, you should learn how the divorce process works. Because every state has different laws and every marriage has unique issues, it is fair to say that every divorce will be different. 

Since every divorce will be unique, this article will focus on the general rules regarding the divorce process. If you have questions about the specific divorce laws in your state, consult with a local family law attorney in your jurisdiction.

How Does a Divorce Start? 

In most circumstances, obtaining a divorce begins with one spouse filing a divorce petition. The filing of the divorce is the beginning of a legal action. The divorce petition should be filed in the county where the couple resides.  

What Information Will be Contained in the Divorce Petition?

The divorce petition will include the names of each spouse, the date and place of the marriage, a list of the children born during the marriage and their dates of birth, a list of the marital and nonmarital property, the petitioner’s suggestions for child custody and support, and the petitioner’s suggestions for alimony. 

In some states, a couple can get a divorce without having to show that one person did something wrong. In these jurisdictions, most divorce petitions list the reason for the divorce as “irreconcilable differences.” 

In other states, you must prove that one of the spouses was at fault for causing the divorce. Usually, it’s because of cheating, drug or alcohol abuse, money problems, being left alone, or physical or emotional abuse.

The divorce petition will also set forth whether there is a need for a temporary order from the court for child support and alimony payments. If a spouse needs money while the divorce is going on, they often ask the court for a temporary order for alimony or child support payments every month. Most requests for temporary support orders are heard and granted within 30 days of filing the divorce petition. 

Once the divorce petition is filed with the court, the clerk will deliver a copy of the petition and a summons to the sheriff’s office, along with instructions to serve a copy of the divorce on the other spouse. 

Depending on how the couple communicates and gets along, this may be done by sending a copy of the petition to the other spouse’s lawyer with an agreement that formal service will not be done. The alternative is to have the sheriff’s office or a process server deliver a copy of the petition to the spouse at their home or place of work. Most couples want to avoid formal service of the petition because it can be embarrassing, especially at work. 

When a copy of the petition is given to a spouse, that person must sign a receipt saying they received a copy. This receipt is then filed with the court. When you fill out the proof of service form, the waiting period before you can get a divorce in each state starts. 

It should be noted that certain states have a different meaning for the date of separation, so verify the laws in your state.

Once the divorce is filed, most courts will issue an order that neither spouse may borrow money or sell any significant marital assets without the other spouse’s consent. 

The person who received a copy of the divorce petition must file a response to the petition. There is a time limit for filing an answer in each state. Most states require an answer to be filed within 30 days.

The answer will state whether the spouse agrees that the marriage is broken and that divorce is necessary or whether they intend to fight it because they disagree with the other spouse’s proposed division of marital property, proposed child custody plan, or proposed child support amount. 

What is the Divorce Discovery Process?

Once the divorce is filed, both spouses must disclose information about their finances. Each spouse must give the court a list of all assets, income, and expenses and sign a financial affidavit.

It can be challenging and take a lot of time to gather all the information you need to get a divorce. Check out our divorce checklist to learn how to prepare yourself for a divorce.

If the disclosures aren’t enough or if one party needs more information, there will be more discovery.

Each side’s lawyer will send the other side verified information and questions that must be answered under oath. These are called interrogatories. Each jurisdiction typically has standard interrogatories that must be answered in every divorce case.

Lawyers will also send formal discovery requests, asking a spouse to produce certain documents. This is called a Request for the Production of Documents. With this discovery tool, a spouse must show copies of bank statements, reports of income and expenses, and other financial documents. 

Settlement Discussion in a Divorce

If spouses cannot settle, the court will likely order the parties to attend mediation or a settlement conference with the judge. The idea is to make the parties sit down and negotiate with a judge or a mediator guiding the negotiations. 

Child custody and visitation, alimony and child support, and dividing up the couple’s property are the things that cause the most fights.

All outstanding issues will be resolved at trial if the settlement conference or mediation fails.

What Happens During a Divorce Trial? 

During a divorce trial, both sides can make opening statements, present evidence, cross-examine witnesses, and make closing arguments. The judge will review all the evidence, decide how trustworthy each witness is, and use their expert knowledge to determine what they think is a fair and reasonable way to settle the divorce.

Typically, judges make a ruling around two to four weeks after a trial. The judge will issue findings of facts and conclusions of law in a document called a judgment of divorce or a divorce decree. The divorce decree will state who gets primary custody of the children, how much child support will be paid, whether alimony will be paid, and how much and how property and debts will be divided.

The attorneys and each spouse should carefully review the judge’s order. If you find mistakes, have your lawyer tell the court to fix the errors before the judgment becomes final. The judge must sign the divorce decree to make the divorce decree official and for the divorce to become final. 

Can You Appeal a Divorce Decree? 

You can appeal the judge’s ruling if you believe the divorce decree is unjust or unfair. Typically to win an appeal, you must show the judge did not follow the law or reached a conclusion that is against the overwhelming weight of the evidence.

Every state will allow you to appeal the divorce order and ask for the case to be reviewed again. The appeal is typically filed in the court of appeals. Each jurisdiction is different, but in Missouri, where I practice, I tell my clients that an appeal will add at least another year to the divorce proceedings. 

How Long Does It Take to Divorce?

Because each divorce is different, there is no standard amount of time for obtaining a divorce. Several things will influence the length of time a divorce takes.

How long it takes to get divorced depends a lot on the state where you live. 

In Missouri, there is only a 30-day waiting period. In other jurisdictions, such as California, there is a cooling-off period of up to six months. Others, such as New Jersey, Georgia, Montana, and New Hampshire, have far shorter or no cooling-off periods. Other states, like New York, do not have any mandatory waiting period. 

Another critical factor in determining what your divorce process will be like will hinge on whether or not you and your spouse can agree on all the conditions of a divorce settlement. Couples that can reach a divorce settlement will save time and money because their divorce will be uncontested.

If the couple cannot agree on the terms of a settlement, there will be a delay in the divorce procedure. Couples can choose from many ways to get through a divorce, such as mediation or working together. Each can save time and money over a full-blown, disputed divorce that ends in a trial before a judge.

Another critical consideration is whether you and your spouse can agree on all essential parts of a divorce settlement. If you can, this means you can get a divorce without a fight.

If your divorce is uncontested, there will not be a trial. In a divorce with no disagreements, the judge will review the proposed settlement and ensure it is fair before giving the final divorce decree. This may happen in 30 days in certain states.

On the other hand, you and your spouse will have to go through arbitration, settlement conferences, mediation, or a trial in front of a judge if you can’t agree on things like alimony, child custody, and support, or a fair way to divide your property.

You must settle to avoid significant delays and increased expenses. Contested divorces typically take over a year before they are resolved. Child custody, child support, and alimony payments are frequently a source of contention between spouses.

A couple that has been married for a short time has no children, owns no house, and has no savings will have a different divorce process than a couple that has been married for 30 years, has six children, owns a home, and has significant money in the bank and retirement.

Couples married for an extended period may have amassed significant assets or own a business together. Determining the value of the assets and then choosing a fair distribution may take a lot of work and may require hiring an expert witness to appraise the value of assets.

In my experience, the longer the marriage, the more assets a couple has, the longer the divorce will take. 

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Tim McDuffey is a practicing attorney in the State of Missouri. Tim is a licensed member of the Missouri Bar and Missouri Bar Association.

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