File for Divorce

Aug 8, 2012 by

In order to file for a divorce, the first thing that must be done is the filing of a complaint or petition for dissolution of the marriage with the court that has jurisdiction over the case. Even if both parties are in agreement about the divorce and there are no complex issues to be decided, one spouse must still file a petition to initiate the process. The petition is a formal request asking the court to terminate the marriage and the person making the request is known as the plaintiff. The spouse who receives notice of the petition is the defendant or respondent. The petition for dissolution will indicate the specific grounds for the divorce action and those grounds will vary according to the court with jurisdiction. Most states currently allow no fault divorces where irreconcilable differences are all that need to be cited as reasonable grounds for a divorce. No fault divorces are generally less complicated and are the most common type of divorce in the United States today.

Where you file for divorce depends on where you and your spouse are living now and where you have lived in the past. Most states require proof of residency for a specific amount of time before you can file for divorce in that state. Generally, you can file in the county where you and your spouse lived at the time the separation occurred or the county where your spouse currently lives. If your spouse has moved out of the state you can usually file in the county where you currently reside. In most all states you must have established a permanent residence in the state prior to filing for a divorce. Two exceptions to the rule are Arkansas and Oregon, where you must be physically present in the state but are not required to have established a permanent residence there in order to file. Forty-five states out of 50 have minimum allowable periods of time that a person must be a resident before they can file for a divorce. Louisiana, Montana, South Dakota, Washington and Alaska have no minimum length of time required to prove residency before you can file for divorce. Exceptions to the rules are persons serving in the U.S. military forces, who can generally file for divorce in the state they are assigned to without further residency requirements.

As soon as one spouse files a petition for dissolution of the marriage they must notify their spouse of the filing and show proof that they have provided them with a copy of the petition. Divorce papers can be served in several ways, but all methods will include a signed return receipt acknowledging delivery of the notice of filing. Proof of service will be required by the divorce court before a final Order of Dissolution can be issued. If a missing spouse cannot be located or is unwilling to accept service of papers in person, the court may allow publication of the notice as acceptable service.

Anyone can file for divorce without utilizing the services of a divorce attorney, but it can be advantageous to consult with an attorney before filing. A qualified attorney will be experienced with the divorce laws and requirements in your county and will make filing a bit easier.

Before Filing for Divorce

  • Should you hire an attorney? If your divorce is likely to be a complicated contest, you should probably have representation if you can afford it. If you cannot afford an attorney, your local Bar association or legal aid society may be able to help you. 
  • If you decide to represent yourself, make sure you have the tools necessary to do the job correctly. Gather information, speak to your friends and qualified professionals before deciding what your course of action will be.
  • Should you try mediation? Considering that 90% of divorce cases are settled before going to a court trial, mutual negotiation through mediation can be an effective and inexpensive tool at your disposal.
  • Arrange your priorities and goals for the eventual outcome of your case. Make your decisions based on those priorities. You can’t move forward if you don’t know where you want to be when the divorce is over
  • Let go of emotional issues that won’t matter later. Present them to your counselor or therapist, not to the court.

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