Filing a Divorce

In today’s societies, divorce has become very common. As much as it leads to family devastation, it also happens to be the only solution for families to live in peace and harmony. Divorce was for a long time a taboo subject and many “divorcees” were looked down upon in society. Many religions too discourage divorce and consider it as a grave sin. However, we are also an ever-changing society and a progressive one at that. Instead of shaming people, we must show constant support for people coming out of horrible married lives. For example: people who get out of horrendous divorces often not only go through enormous pain but also find themselves alone with their children and having to take care of excess expenses that were once shared expenses. One must know every nitty gritty surrounding divorce proceedings before taking any drastic steps. It is also advisable to consult with your lawyers first on the same. In this article, we will be discussing on requirements for filing a divorce, the difference between contested and uncontested divorce, the steps involved in filing a divorce, the documents needed for filing a divorce, the costs associated with filing a divorce and the timeline for completing a divorce.

Grounds for divorce are regulations specifying the circumstances under which a person will be granted a divorce.[1] Each state in the United States has its own set of grounds.[2] A person must state the reason they want a divorce at a divorce trial and be able to prove that this reason is well-founded.[3] Several states require that the couple must live apart for several months before being granted a divorce.[4] However, living apart is not accepted as grounds for a divorce in many states.[5] In the United States, married couples are allowed to end a marriage by filing for a divorce on the grounds of either fault or no-fault.[6] In the past, most states only granted divorces on fault grounds, but today all states have adopted the no-fault divorce.[7] in fault divorces, one party is asking for a divorce because they claim the other party did something wrong that justifies ending the marriage.[8] The most common ground for divorce can be adultery, physical or mental abuse, or any other differences that may occur within a marriage. In addition to this, there are, also, additional grounds that are acceptable in some states such as drug abuse, impotency, and religious reasons.[9]

No-Fault Divorce

Every state in the United States allows the acquisition of no-fault divorce.[10] No-fault divorce is said to occur when partners mutually agree that there is no point in continuing a marriage, for example: A & B realize they have fallen out of love and do not seem to want to be together, here no-fault divorce will apply. It is also easier to attain a no-fault divorce, and also much more hassle-free. In certain states like South Dakota, Mississippi and Tennessee, couples need to prove or provide information as to any incompatibility issues or why they cannot work on their marriage, or why they have grown apart in order to obtain no-fault divorce. If a couple has been living separately for a particular period of time can apply and easily acquire a no-fault divorce. The time period that a couple will have to be away from each other is at least 6 to 12 months.

California was the first state to adopt a no-fault divorce law and it officially came into effect in the year 1970, while New York was the last state in the United States to enact no-fault divorce law and the same was passed in the year 2010. Before no-fault divorce was available, spouses seeking divorce would often allege false grounds for divorce.[11] Removing the incentive to perjure was one motivation for the no-fault movement.[12] This is the most preferred option as couples do not have to share any intimate details in the court and the proceedings on the same is conducted very privately and confidentiality is maintained.

“No-fault divorce grew quickly in popularity among the states from the 1970s onward. The no-fault movement gained steam as an alternative to the tactics of perjury and forum shopping employed by some unhappy couples to bypass their state’s fault divorce laws. However, critics of the pure no-fault movement – in which fault divorce is not an available option – have blamed no-fault divorce for many social ills, including rising divorce rates, increased bad marital behaviour and domestic violence, and the destruction of the concept of mutual interdependence that was traditionally central to marriage.”[13]

The necessary steps that need to be taken for filing for divorce depend on what kind of divorce you are applying. However, here are some basic overviews of how a general divorce process takes place:

1. Filing for Petition: This is the first and foremost step in filing for divorce. The one who files the petition is called the Petitioner and the other party is often referred to as The Defendant. In the United States of America, the acceptable grounds for filing for divorce will vary from state to state.
2. Issue Divorce Order: The court can issue temporary orders that outline specific actions that must take place immediately and last until the final divorce hearing.[14] These are legally binding orders and any party that does not follow them will be considered in contempt of court and will be punished accordingly – which will be in the discretion of the particular judge. Divorce order typically covers your child support or custody or maintenance etc.,
3. You’ve Been Served: and that is literally once a party files for divorce, the other party or spouse against whom the divorce is filed needs to be notified or served. The same needs to be stated in the court of law by you or your lawyer that you have formally notified your spouse about the same. “Usually, the spouse can simply sign what is sometimes called a Voluntary Appearance document. If your spouse signs a Voluntary Appearance document, then he or she simply agrees to everything in the complaint and does not have to respond. Otherwise, he or she must formally respond, or file an answer, within a specific period of time — usually 20 to 30 days. And, once he or she responds, there is another waiting period before a hearing can be set. If your spouse is served and does not answer, then the judge can grant you everything requested in the complaint. If your spouse cannot be located, then usually a “service by publication” can be filed. In this case, notice about the divorce appears in a newspaper serving the county where your spouse last lived. This method for service usually allows a longer response period.”[15]
4. Respond: The party against whom the petition is filed needs to respond. He or she can either dispute those grounds or accept them – either of which will be addressed in the response. Any disagreement regarding child support or property division needs to be done in the response.
5. Negotiation: If there are irrevocable differences that need to be sought out, this is the stage where parties come together and negotiate and compromise. Negotiation should be done in manner where parties talk it all out in a manner that is favourable to both parties.
6. Final Steps: At any point, negotiation does not work out and parties have no way to sort out their differences. In the final step – parties will adhere to a trial procedure. It is often advisable to not reach this step and sort whatever it is within the fifth step. The trial often might or might not be in your favor will take up your time and will cost a lot, you will have to pay your lawyer for each hearing and defending your case overall.

Difference Between Contested and Uncontested Divorce: “Uncontested divorce involves spouses who agree on the separation of their assets and the dissolution of the marriage. In a contested divorce, the parties may not agree on the terms of the divorce, which parent should house the children, or even whether they want a divorce.”[16] In the contested type of divorce, you follow the above steps.”[17] Divorce is not easy, no matter even if the couple has nothing against each other or is not bitter towards each other. When we say divorce is not easy we mean it literally, the procedure itself is long and includes regular court visits and whatnot. Therefore, naturally, when a couple decide to divorce, there are many other decisions that they need to make as well. Like who gets the three dogs and which one gets to keep which one? How will assets or debt be divided quickly? Or whether they should even be divided in the first place?

“Another difference between contested and uncontested divorces is the extent to which the outcomes are appealable. Since in an uncontested divorce the parties consent to the arrangement, the terms of the divorce are not appealable. However, that does not mean that the parties are stuck with the agreement forever. If circumstances change significantly and/or a specific period of time has passed, depending on your state you may be able to modify the agreement. However, since the parties are making the decisions themselves, they are more likely to be happy with the outcome of the proceedings.

In a contested divorce that does not settle, the judge is the one who is ultimately responsible for making the decisions for the couple. The judge may end up prioritizing some concerns over others, but this may not always align with the priorities of the couple. For example, it may be very important to one spouse to keep the house, and the other spouse may prefer to get the car. However, a judge may order the house sold and the car to go to the other spouse. The more control the spouses have over the process, the more likely they are to come to an agreement that they both can live with.”[18]

As stated earlier, divorce law differ from state to state, and usually divorce is usually filed at the nearest family court. Courts may have a set of standardized procedures or forms that need to be filed. Few documentation that are common to states and California included are:[19]

1. A Petition for Dissolution can be filed in any county where at least one spouse meets the residency requirements. The courts’ Divorce Finder feature can help a petitioner determine where they qualify to file. They can then use the Find My Court tool to see exactly what courthouse locations are available in their area. In California, filing fees range between $435 and $450, but individuals who can’t afford this can apply to have the fee waived.
2. Unless both spouses together file a Joint Petition for Summary Dissolution, the petitioner must also complete a Summons, which is filed alongside the petition and also served to the other spouse (called the respondent) to inform them of the dissolution case and provide 30 days notice to submit a Response form. This process usually involves a Proof of Service of Summons form as well.
3. A Declaration of Disclosure form documents marital assets and debts. These are filed and served alongside or following the Petition for Dissolution. A final disclosure later in the divorce process uses the same form but requires more detail, including the categorization of property as either community (marital) or separate. Unless both spouses agree to waive it, a final disclosure is required 45 days prior to a judgment or trial date.
4. If minor children are involved in the divorce, the petitioner must submit a form for Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act. They may also request a temporary order from the court to address matters like child custody, exclusive possession of the marital residence and spousal support while the divorce is pending.

One needs to research their nearby courthouse and contact and follow through diligently. There will be different requirements for different courthouses, calling the county and asking about the requirements needs to be done on a first-priority basis. The same information will also be available on your local court’s website – the website offers contact details and any FAQ related to documents and procedures which also needs to be read and followed accordingly.

[1] "Grounds for Divorce Law &Legal Definition". USLegal.

[2] The World Book Encyclopedia (2002 ed.). Chicago: World Book. 1988. p. 253. ISBN 0-7166-0102-8.

[3] Gross, James J.; Callahan, Michael F. (2006). File for divorce in Maryland, Virginia or the District of Columbia (2nd ed.). Naperville, Ill.: Sphinx Pub. p. 51. ISBN 1-57248-536-1.

[4] Statsky, William P. (2004). Family law : the essentials (2nd ed.). Clifton Park, NY: Thomas/Delmar Learning. p. 89. ISBN 1-4018-4827-3.

[5] Statsky, William P. (2004). Family law: the essentials (2nd ed.). Clifton Park, NY: Thomas/Delmar Learning. p. 89. ISBN 1-4018-4827-3.

[6] Loveless, Scott (2007). The family in the new millennium (1. publ. ed.). Westport, Conn. [u.a.]: Praeger. p. 187. ISBN 978-0-275-99240-8.

[7] Choudhri, Nikara K. (2004). The complete guide to divorce law. New York: Citadel Press. p. 7. ISBN 0-8065-2528-2.

[8] Choudhri, Nikara K. (2004). The complete guide to divorce law. New York: Citadel Press. p. 7. ISBN 0-8065-2528-2.

[9] Choudrhi, Nihara K. (2004). The Complete Guide to Divorce Law (1st ed.). New York, NY: Kensington Publishing Corp. p. 10. ISBN 0-8065-2528-2.

[10] Haman, Edward A. (2001). How to file your own divorce : with forms (4th ed.). Naperville, IL: Sphinx Pub. p. 31. ISBN 1-57248-132-3.

[11] Glaberson, William (17 June 2010). "New Divorce Law Would Allow Couples to Tell the Truth". The New York Times. Retrieved 25 June 2018.

[12] Trotta, Daniel (25 June 2010). "Proposed NY law could soon bring no-fault divorce". Reuters.

[13] no-fault divorce | Wex | US Law | LII / Legal Information Institute (cornell.edu)

[14] USA Family Law and Policies -Protection and Spousal Alimony (vakilsearch.com)

[15] Id 14.

[16] Differences in Contested and Uncontested Divorce in GA | Valerie G. Long, Attorney at Law, Legal and Financial Services LLC (valerieglong.com)

[17] Differences in Contested and Uncontested Divorce in GA | Valerie G. Long, Attorney at Law, Legal and Financial Services LLC (valerieglong.com)

[18] Contested vs. Uncontested Divorce & Legal Procedures | Divorce Law Center | Justia

[19] Below points retrieved from: Divorce Papers & Forms (2024 Guide), By Kimberlee Leonard, Oct 25th 2022, Divorce Papers & Forms (2024 Guide) – Forbes Advisor