What is the Process of Getting a Divorce?
For example, a divorcing couple who has only been married for a few years, has little money in the bank and no children will be different than a couple who has been married for 25 years, own a house and have considerable retirement accounts and financial assets.
Although the details of the divorce process will be much different for each couple, the basic steps will pretty much stay the same.
The other big variable is if a couple can agree on all the terms of a divorce agreement.
If so, they can go through an uncontested divorce saving a lot of time and a considerable amount of money.
If there are disagreements, then the process will take longer. Couples may choose several options to work through a divorce, such as mediation or collaborative divorce that can still save time and money versus a full-blown contested divorce that ends in a trial in front of a judge.
For most divorces, the process starts with one spouse filing a petition.
This is a formal action that asks the courts for the divorce and is usually filed in the county where one of the spouses lives. The petition will state the reason for seeking the divorce and will identify the spouses, their children, community and separate property, child custody and child support arrangement if they are in place.
All jurisdictions allow for some form of no-fault “irreconcilable differences” as a reason, which makes the process less antagonistic. Some jurisdictions also provide the opportunity file for a divorce based on fault, such as adultery or abandonment.
If one spouse depends on the other for financial support or is seeking custody or child support for any children, then that person will also need to file a temporary order with the court requesting these things to be put in place. Hearing for temporary orders are usually granted within a few days (depending on the county where you live).
The spouse who filed the petition must then make sure the divorce petition is delivered to the other spouse and must provide proof of this through what is known as proof of service.
Depending on the relationship of the divorcing couple, this can either be done by delivering the petition to the other spouse’s attorney, or through a process server at the spouse’s home or workplace.
The person receiving the petition must sign an acknowledgment of receipt or it can be verified as being delivered by the process server. Completing the proof of service also creates an official date of separation and starts a state’s waiting period.
Note that some states have a different definition for the date of separation so be sure to check the laws in your state.
During this time, both spouses are not allowed to sell or borrow against any property or take children out of state.
The person receiving the petition has a specified amount of time, usually 30 days, to file a response.
This will either indicate they agree with the divorce or that they choose to contest it either based on the grounds for the divorce, or they disagree with proposed child support, custody, division of property or some other issue.
Also, at some point, both spouses are required to disclose their financial situation by completing financial affidavits (sometimes called financial disclosures).
If the disclosures are not thorough or one party wants additional information, then they will proceed with discovery.
Attorneys for both parties will request information from the other side, send a list of questions that need to be answered, and make a request for “production of documents” which means that a spouse will need to turn over things such as bank statements, statements of income or any other documents that an attorney believes will help his or her client.
If there is disagreement about how the divorce should be resolved, then both parties will need to try and settle their differences through settlement negotiations.
The courts may schedule voluntary or mandatory settlement conferences or mediation in an attempt to resolve the issues.
Typically, the most common points of contention involve custody and visitation, alimony and child support, and the division of property.
If mediation or settlement negotiations fail, then any remaining disputed issues will be decided at trial.
At the trial, both sides will be given the opportunity to present their cases, the judge will examine all of the evidence, and make a decision on what he or she thinks would be a fair and appropriate outcome.
Typically, judges take about two weeks following a trial to render a decision.
After a trial, or if both parties are able to reach a negotiated settlement that is approved by the courts, a judgment of dissolution will be issued that will spell out how property is to be divided, what child support, custody and visitation rights are to be enacted and any other issues that will impact the divorcing couple.
Both parties and their attorneys will need to sign the order, making the divorce decree official.
It is imperative that you take time to read the order of dissolution completely because you will be bound by the terms.
If you find mistakes, you should request that they be corrected.
There is one final step that you may pursue if you feel that the order of dissolution is unfair to you.
You have the right to file a motion to appeal the order and request a new hearing. The motion is filed with the same judge who heard your case and most judges will not set aside their own orders, so don’t be surprised if your request for appeal is denied.
How Long Does It Take to Get a Divorce?
One of the biggest factors that determines how long a divorce will take is the state where you live.
Some states have a cooling off period that can last as long as six months which is the case in California. Others have much shorter periods or no cooling off period at all including states like Georgia, Montana, New Jersey, New Hampshire and others.
The other big factor is whether or not you will be able to agree with your spouse on all major points in a divorce settlement or not, thus going through an uncontested divorce.
When you present an agreed-upon settlement to the courts for review, there is no trial and a judge only needs to review the terms before granting the divorce. In some states this can happen in as little as a month.
On the flip side, if you cannot resolve issues such as child custody, alimony, child support or how to divide assets, then you will need to either go through mediation, arbitration, or a trial to decide these major points.
This will add a considerable amount of time (and expenses) to your divorce, perhaps as much as a year or more. In many states, child support and alimony amounts are often pre-determined, but can still be a flash point among couples.
Couples who have been married for a long time may also have accrued considerable assets or have business interests together. Trying to decide the value of these assets and then coming up with an equitable distribution can be particularly challenging.
Many times, outside experts must be brought in to determine valuations which can then be used as evidence in a divorce trial.
In community property states, these assets are divided equally and on a 50/50 basis which simplifies things.
But in states where equitable distribution is the method by which assets are divided, the task can be much more daunting and complex because equitable does not always mean a 50/50 split.
How Much Does It Cost to Get a Divorce?
If you are seeking an uncontested divorce but you do not have funds to pay the filing fees which can run anywhere from $200 to $500 or more, then you may be able to request a fee waiver from the courts.
If approved, you will not have to pay any filing fees. You will be required to submit some financial information to support your claim, but ultimately you may not have to pay anything but a few incidentals that can vary from state to state.
If you decide to hire a divorce attorney, you can expect to pay anywhere from $150 to $400 or more per hour for their services.
It just depends on the attorney you select and the area you live. Chances are you will also need to pay a retainer up front which may run $5,000 to $10,000 or more, depending on the attorney and the complexities of your case.
If you choose arbitration, expect that your costs will be somewhere between $3,00 to $7,000 and possibly more.
The same may hold true if you retain the services of a mediator which is sometimes ordered by a judge in some divorces.
Fully contested divorces where the spouses are in dispute about many things are the costliest of all divorces.
If the assets are considerable, outside experts may need to be brought in, negotiations can take months, and legal bills can be considerable.
Looking for more great tips to help you get through divorce? Here are a few of our favorite guides and resources: