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What is the Process of Divorce?

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What is the Process of Divorce?

Generally speaking, the divorce process is the legal process by which a couple officially terminates their marriage under law.  The divorce process is always going to be slightly different for each couple.  This is because each situation may involve different factors, such as property issues and child custody.  Also, each state has different laws that govern the area of divorce.

Divorce involves many steps that both parties in a divorce must participate in.  If any of the requirements for a legal divorce are missing, it could affect the validity of the divorce status.  For this reason, it is highly advisable that each partner in a divorce obtain their own lawyer to assist them throughout the process.

What Steps are Involved in the Process of Divorce?

In order to help you understand process of divorce, it is helpful to divide the process into several important steps.  These are the crucial stages of the divorce process, each of which may be associated with different goals for each partner and their respective lawyers.  These steps include:

  • Separation:  This is the stage where one spouse may move out of the marital home and live apart from their partner.  Separation may be temporary, or it might involve formally filing for legal separation.  Legal separation may already involve issues like property distribution.  While most states don’t require the couple to file for legal separation, some states will only allow a divorce filing if the couple has been physically separated for a period of time.      
  • Filing a Petition:  One of the partners may file for divorce if they have met the separation requirements.  This requires the partner to complete the appropriate court forms (such as a “Complaint for Dissolution of Marriage”) and pay the filing fees.  This must be done in the district court of the state of residence.  A lawyer can assist with preparing the documents.
  • Notification:  Once the petition or complaint has been filed, the other spouse needs to be notified, or “served” with the divorce papers.  The spouse then has about 20-30 days to respond to the complaint.  If they fail to respond, a judge will usually grant the petition.  If the spouse cannot be located, they can still be notified through “service by publication” (i.e., placing a notification in the newspaper).
  • Temporary or Preliminary Hearing:  This is an initial meeting with the spouses, their lawyers, and the judge to determine preliminary matters.  It can sometimes be a long time after filing before trial finally begins.  Thus, the purpose of a temporary hearing is to resolve matters that need to be addressed immediately, such as: requesting temporary child support or custody; requesting for exclusive use of the marital residence; and requesting instructions regarding insurance.
  • Negotiations, Mediation, and Agreements:  Here the parties may attempt to resolve their differences through negotiations, mediation, or another form of alternative dispute resolution such as early neutral evaluation.  It is often helpful for the parties to resolve some of the issues out of court.  For example, they may attempt to finalize an agreement regarding property distribution.  Then when trial actually begins, they can submit the agreement to the judge for approval.
  • Trial:  If the parties cannot reach an agreement through negotiation, then they will have to address their issues during trial.  During trial, each side will present their arguments and provide evidence in support of their requests.  A typical divorce trial will address the following issues like:
    • Establishing legal grounds for divorce
    • Finalizing child custody and visitation arrangements
    • Settling financial disputes and property division
    • Setting amounts for spousal and/or child support
  • Post-Trial issues:  Ideally, all issues will be settled during trial.  However, additional legal issues may arise after trial.  For example, it is common for the parties to need an adjusted child visitation schedule as circumstances change.  Appeals may be available in some divorce cases

Thus, it can be quite some time before the process of divorce is finally completed.  And, as you can see, it may be necessary to consult with a lawyer well before trial formally begins.  For instance, you may need to some assistance when filing the divorce complaint. 

Do I Need a Lawyer for the Process of Divorce?

Working with a lawyer can be of great help during the process of divorce and may be a requirement in some cases.  A divorce lawyer can help you throughout each step of the process, and can make sure that your interests are fully represented during trial.  Divorce laws may vary widely according to region, especially with regards to distributions of property. 

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 04-27-2017 01:37 PM PDT

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