To start the divorce process, a spouse must tell the court they want to get a divorce. This means filing a stack of papers with the court clerk's office. Once filed, the divorce case has a number, and the process can begin.
The divorce petition is the first in a series of legal documents you must file with the court. This article reviews the petition and other divorce paperwork and how to file them with the court.
Petition for Dissolution of Marriage
The Petition for Dissolution of Marriage is the document that identifies the parties seeking a divorce, the basic grounds for the divorce, and contact information for both parties. In most states, the petition is a checkbox form.
Each state has its own requirements and forms. Some counties have forms as well. Parties should get legal advice from a family law attorney before filing their documents. Courthouses may have a legal self-help center at the court clerk's office, but it cannot give legal advice.
The petition will ask for any or all of these items:
- The name and address of the person filing the petition: This person is the "petitioner"
- The name and address of their spouse: This person is the "respondent"
- The date and location of the marriage
- If there are minor children, their names and birth dates
- Residency in the current location: Most states have a residency requirement to get a divorce. It may be a few weeks or up to a year. Some counties have separate residency requirements
- Grounds for divorce: In a no-fault divorce, there are only two grounds, "irreconcilable differences" or incapacity or incompetency on the part of one party
- An initial request for settlement: The petitioner must include their financial statement and a request for a division of property, sometimes called a "prayer for relief"
A petition may include a request for temporary orders (sometimes known as "pendente lite or PL orders"). Depending on the jurisdiction, these are attached to the petition or included with the divorce forms. Temporary orders may include:
- Child custody matters, including child support and visitation
- Spousal support or temporary alimony
- A temporary restraining order or no contact order
The petition should include a financial disclosure, sometimes called a declaration of disclosure or summary of assets and liabilities. The petitioner lists all personal and marital property and all their personal and marital debts. The respondent will file their disclosure with their answer. If either party is requesting child support, spousal support, or trying to show that a request from the other party isn't feasible, they may also need to file a financial statement showing their monthly income and expenses.
Proof of Service
After filing the petition, you must deliver it or "serve it" on the respondent. There are several ways to serve the petition.
Professional process servers deliver court forms to respondents for a fee. They can be expensive, but they know how to serve documents and fill out the proof of service forms.
The county sheriff's department will serve court documents for a reduced fee or free for indigent clients. Time pressures mean that they cannot guarantee fast service.
Any individual over 18 who is not directly involved in the case can serve the documents to the respondent. Spouses and family members may not serve documents. This is the cheapest way to serve the petition, but it can be risky if the person fails to complete the proof of service form or file it.
If the petitioner knows personal service is impossible because the respondent is missing or will not accept service, there are alternative methods. These methods require additional hearings and add months to the divorce proceedings. A divorce lawyer is essential for absent or missing spouses.
Some divorces have other legal issues along with the petition. Petitioners should ask the clerk's office when requesting the forms or discuss it with their family law attorney.
- Fee waiver: Filing fees for a divorce petition can be expensive. Low-income or indigent petitioners can request a fee waiver which allows them to file their documents without paying. The court will review their financial disclosure and determine if they should pay the filing fee, part of it, or none of it.
- Summary dissolution: If the parties have few assets and no minor children, they may be able to file for a summary dissolution. They should include a written agreement with their petition. Most courts have a separate form for summary dissolutions.
- Domestic partnerships: States that recognize domestic partners require them to dissolve their partnership through divorce like married couples do. If you and your partner wish to end a registered domestic partnership, you should contact a family law attorney before filing any paperwork.
Filing the Divorce Papers
Where you file is the most important part of the process. The petitioner and respondent must get divorced wherever they live. Family law and state law prevent people from moving out of state to get a fast divorce. Different counties within the state may also have residency requirements. Not all courthouses in a county may handle family law matters.
For instance, California requires at least one spouse must have lived in California to file for divorce there. But to file for divorce in Los Angeles County, one spouse must have lived there for three months. In a county the size of Los Angeles, you should be sure which of the 12 courthouses will be most convenient to where you live and work.
The petitioner must wait until the respondent files their response, sometimes called an answer. In most states, the respondent has a set period of time, usually 30 to 45 days, to respond to the petition. Then the parties begin exchanging discovery, and the judge sets a trial date. The process may take several months. When the parties have a settlement agreement, the judge signs the final judgment and divorce decree.
Get Legal Help Filing and Serving Divorce Papers
Whether you file for summary dissolution or have a complex contested divorce, it is always a good idea for an experienced divorce attorney to review your documents. The divorce petition is the first place for things to go wrong and the first place you need eyes on your agreement.