The first step in what can be a long process to end a marriage is filing for divorce. A lot of conversations, introspection and planning may take place before you determine you’re ready to proceed. And once you’re ready, you’ll likely want to get things moving ASAP. One way you may be able to help avoid delays is to understand how to file for divorce.
This article takes you through the basic steps of initiating a divorce with examples from several states. Although the exact process differs from state to state, this information will give you a sense of what the beginning of a divorce looks like.
How to start the divorce process
In general, you’ll likely be required to to take the following steps to start the divorce process. Again, these rules and procedures may vary depending on the court that has jurisdiction over your case.
1. Locate the right court
Before you file anything in a divorce court, you need to make sure that you’re filing your paperwork in the right courthouse. You must file in the court where you meet the residency requirements. Additionally, sharing minor children with your spouse may affect where you need to file for divorce.
Meet the residency requirements
Several jurisdictions, including Texas and California, require proof that you or your spouse has lived in the state for at least six months and in your county of choice for at least 90 days or three months before filing for divorce. Other states require less to establish residency. For instance, Colorado requires proof that you’ve lived there for 91 days before filing for divorce; however, you typically can’t finalize a Colorado divorce that involves a minor child unless the child has lived in the state for at least 182 days.
Can I file for divorce in another state?
Typically, you can fulfill residency requirements for a divorce based on where you, your spouse or your child lives. If you live in a different state from your spouse, you may be able to choose which of those states to file in. However, if you have a minor child with your spouse, you usually need to file in the state where the child lives.
A court clerk or attorney may be able to help you confirm the divorce residency requirements in your area.
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2. Submit the right paperwork in the right way
Filing requirements may vary by state, but you often need a petition (or complaint) for divorce, a summons and an affidavit of service to begin a divorce.
Petition for divorce
A petition for divorce provides information to the court about you, your spouse, any children you share with your spouse and what you need from the divorce proceedings. On a petition, you might be required to list any or all of the following, or other information:
- The date and location of your marriage
- The date you and your spouse separated
- The reason you want a divorce
- Your contact information and date of birth
- Your spouse’s contact information and date of birth
- The length of time you or your spouse has lived in the jurisdiction
- The ages, sexes and addresses of all minor children you share with your spouse
- The amount of time your children have lived in the state
- The name and contact information for anyone else who has parental responsibilities for your children
- Information about any family law court cases or protection orders involving the parties in the divorce
- Information about what you want in the divorce (e.g., spousal support, asset division, child support, parental responsibilities, etc.)
File the completed petition for divorce with the court and pay the associated filing fee. Filing your initial divorce papers may cost several hundred dollars. If you don’t have the means to cover the cost of a divorce petition, you may ask the court to waive its fees.
Summons
Your spouse may already know you want to end the marriage, but you need to give them official notice about the divorce and your requests. You give this notice by having your spouse served with the petition and a summons.
Divorce summons typically tell the spouse being served that a divorce case has been filed and that the spouse being served (also called the respondent) must respond to the petition within a certain amount of time (often around 20 days to a month). A summons might also inform the respondent of restrictions prohibiting them or the filing spouse (also called the petitioner) from:
- Selling, transferring or taking out a loan on their property
- Taking any children from the marriage out of the state
- Changing insurance benefits
- Bothering the other while the divorce is pending
If the respondent doesn’t submit a timely response to the petitioner’s divorce complaint, the court might enter a divorce decree granting the petitioner’s requests, or at least without the respondent’s input.
To serve a petition for divorce and summons on the respondent, the petitioner might have to pay one of the following individuals to hand-deliver the paperwork to the respondent:
- A professional process server
- A sheriff
- Someone who’s at least 18 and isn’t involved in the case
Sometimes, if a petitioner can’t locate the respondent for personal service, they may serve the respondent by mailing the papers or publishing the divorce notice in a local newspaper.
Affidavit of service
Once service is complete, you need to inform the court. To prove that you properly served your spouse, you might have to file an affidavit or certificate of service with the court. The person who served your spouse fills out this document that describes when, where and how they completed service on your spouse. Typically, the person who fills out the certificate of service must make their statements under penalty of perjury. In other words, if they make any false statements in the certificate, they may be subject to criminal charges.
Usually, your divorce case is open once you’ve filed your divorce petition, had your petition and summons served, and filed your affidavit or certificate of service with the court. Different states have different next steps for your case, such as attending a conference regarding what actions you’ll need to take throughout your case, participating in mediation, gathering evidence, responding to requests from the other spouse for evidence or attending a hearing.
Filing for divorce without a lawyer
You don’t have to hire an attorney to file for divorce. Because you may often obtain all necessary divorce paperwork from your court’s website or from the court clerk, you may initiate and maintain your divorce case on your own. But keep in mind that divorce courts hold divorcing parties who don’t have legal representation to the same standards they have for attorneys. This means that you may have to know how to make and respond to objections, how to timely file paperwork and how to gather and present your own evidence.
If you choose to navigate a divorce on your own, the court clerk can give you some information about the paperwork you need and timelines and fees for filing. However, a court clerk can’t give legal advice regarding your case.
How an attorney may help
Many people find it beneficial to hire an attorney to juggle the multiple responsibilities in a divorce case. An attorney may help by ensuring that all divorce forms are timely filed and responded to, handling communications between you and your spouse and investigating complex legal matters regarding the division of your assets or parental responsibilities. If necessary, they can also argue your case in front of a judge, which may give you a better chance at divorce terms that align with your wishes.
