Filing a Petition
The first step in the divorce process is to file the divorce petition or the "complaint". The divorce petition is the form that is filed in the state court to notify the state of the petitioner's desire to terminate the marriage. The petition is served as a notification to the petitioner's spouse that a divorce has been requested. If the spouse agrees to the divorce the petition is signed and receipt is acknowledged. After the petition has been signed and filed the waiting period can begin and the date of separation has been determined.
The divorce petition will include the spouses name and address, information about the marriage including information about any children, property and information about residency. It will also include the reason the divorce has been requested and other information about distributing property and money.
In addition, there may be additional temporary "orders" put on certain issues until the divorce process is complete. Temporary orders could include information concerning child custody, bill payment, and spousal support and residency issues.
The petitioned spouse is allowed to respond to the petition and voice their agreement or disagreement. If they agree this could speed up the divorce process and cost less to complete the divorce. The petitioned spouse may also disagree with issues listed in the petition. The petition may be a pre-printed form which has space allowed for explanations to be made for statements in which the petitioned spouse disagrees.
It is important to respond to the petition. The required response time is usually about 30 days. Failure to respond could result in the courts assuming the respondent agreed to the terms outlined in the petition. Failing to respond could affect your ability to negotiate certain issues such as property distribution and custody issues. In order to overturn the petition after the 30 days will require legal justification.
In order to equally divide all property and decide other divorce issues the spouses are required to exchange information. This information exchanged is called the "discovery". Information exchanged will include an honest declaration of all economic assets, property, debt, income and personal information. Honesty is very important in the discovery process. If you are caught lying in the discovery phase of your divorce your position will be negatively affected. Information is often provided in an informal manner or it can follow a more formal process.
There are variations by state for the discovery process but in general there are five steps:
- A list of items is sent to both parties and they have a set amount of time to disclose information. Disclosure rules can vary by state.
- Each attorney has a list of questions that they can request answers from the other side. The amount of questions and the duration to respond can vary by state. The questions can be broad or very specific.
Admission of Fact
- Each party may be sent a list of facts that they can respond to either by agreeing or disagreeing to the facts presented.
Request for Production-
- Both parties have a right to view most documents related to division of property, finances and debt. The document production phase is the legal mechanism which has been created to make these requests. Most documents must be presented with in 30 days.
- The purpose of a deposition is to gather information from the opposing party. Depositions are sworn statements that are recorded by a court reporter. (The testimony is "swon" in that the party is sworn in just as they would be if they were testifying in court.) In a deposition it is important just to present the facts as you see them and not provide additional information. Depositions can also be used to see how a witness might appear in divorce court proceedings.
In most states if all issues can be easily settled and are uncontested than the divorce process may move smoothly and the court will enter their final judgment. If however, any issues remain then additional court proceedings might be necessary to resolve these issues. In some instances the divorce will proceed to a trial.
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child custody, generally to the detriment of the child. If you and your spouse cannot agree on a parenting plan, the court will step in to help you create your plan. There are a variety of factors the court will consider but their main concern will be creating a plan which the court considers to be in the best interest of the child.
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