How Divorce Works (Procedure)
by Unbundled Legal Help
Divorce can have a major effect on your life in many ways. If you are currently considering divorce as an option, it is in your best interest to gain an understanding of the divorce procedures in your state so you can set clear expectations. Learning how divorce works can save you time, money, and a lot of frustration.
Divorce laws and procedures vary depending on the state where you live and your particular situation. In general, the divorce process consists of filing a divorce petition, requesting temporary orders when needed, serving the papers to your spouse, negotiating a settlement, divorce trial (if necessary), and finalizing the judgment.
If you are thinking about getting a divorce but are unsure of your state's divorce procedures, let us connect you today with a local divorce attorney. Learn more below about how divorce procedures work.
File the Divorce Petition
It does not matter if both spouses agree to the divorce or not, one party must file a divorce petition to make the divorce process official. This petition is a request made to the court to terminate your marriage. You can usually find the paperwork to file a divorce petition on your state's website or by calling the clerk's office.
When filing a divorce petition, you are generally required to make a statement that confirms at least one spouse meets the state’s residency requirements, then state your grounds for divorce (reason), and provide any other required information.
Viable reasons for divorce vary depending on your state. However, each state offers couples the option of filing a no-fault divorce. In a no-fault divorce, you do not have to list your reason(s) for filing for divorce. In some states, the courts allow couples to list the fault for reasons such as marital misconduct.
Request Temporary Orders
From start to finish, the divorce process can take a few months to more than a year. While some issues can wait to be sorted out until the final judgment is made, others require fast action.
A family court judge can issue temporary orders that will be in effect until your divorce trial has concluded. When you request temporary orders, the courts will usually hold a hearing within a matter of weeks or sooner if necessary.
Temporary order requests include issues such as child support, spousal support, custodial rights, living arrangements, restraining orders, debt repayment, and asset allocation while the trial goes on, etc. You usually have the option to request temporary orders when you file your divorce. If you do not request temporary orders at the initial filing, then it is in your best interest to do it as quickly as possible.
Serve Your Spouse and Await Their Response
Filing for the divorce is the first step, then ensuring that your spouse is served the paperwork is the next. After you file your petition with the clerk's office, you must serve the paperwork to your spouse. Additionally, you are usually required to provide the court with a “proof of service” document that proves that your spouse has received the paperwork.
If you neglect to serve your spouse or do it incorrectly, your case will likely suffer major delays. In most cases, the most effective method for serving a copy of your divorce petition is to hire a licensed and qualified process server. This is also something that your family law attorney can assist you with.
When your spouse receives the paperwork, they must file their response with the court within a specific amount of time. If they do not, it may result in a “default judgment” against them. In the response, they can dispute the grounds for divorce, any statements made against them, and generally establish their point of view on all divorce-related issues.
Some couples can negotiate on their own and draft a settlement agreement. However, this does not happen all the time. If a couple finds areas of dispute that can’t be negotiated together, they can attend private mediation, request court-ordered mediation, or use the collaborative divorce approach.
Mediation offers couples the opportunity to privately negotiate divorce-related disputes with the help of a neutral, third-party, professional mediator. If successful, mediation saves couples time, money, and a lot of frustrations. Divorces that involve these following issues are typically the most likely candidates for mediation:
- Child custody disputes
- Child support, spousal support, or alimony
- Complex financial issues
If mediation is not successful, you have the option to try again, use another negotiation strategy, or take your case to trial. Family court judges often rely on the recommendations of mediators (as well as other professionals) when making a final ruling. You are not required to hire a divorce lawyer for mediation, but it is usually in your best interest to do so.
Collaborative divorce is not as common as mediation but can be just as effective. This route is usually taken by couples that want to negotiate a divorce settlement while still having legal protection. The collaborative divorce process involves negotiations between you, your partner, and your respective divorce lawyers.
Collaborative divorce lawyers are trained to negotiate solutions that are in the best interest of all parties involved. If it is not successful, both spouses must find new legal representation and begin the divorce process again.
Similar to mediation, if couples can agree on most things during the collaborative divorce process but cannot come to a resolution on one or two remaining issues, they can ask the court to make a ruling on their disputed issues while keeping the rest of their agreement intact.
Go to Trial
Taking your divorce to trial is usually the last resort. Relying on a judge to determine the outcome of your divorce can be the most costly path. Furthermore, the process is typically much longer and you lose your right to privacy since most of your divorce information will become public knowledge.
During the divorce trial, you will be required to present your arguments, evidence, witnesses, etc. Additionally, a judge may order professional custody or mental health evaluations. If your divorce involves child custody issues, the judge will make final custodial decisions based on the best interest of the child.
Finalized Judgment of Divorce
Regardless of whether or not you and your spouse negotiated the terms of your divorce together, in mediation, through the collaborative law process, or it was decided by a judge, you will need to go to court for a judge to finalize the judgment.
Divorce judgments detail the responsibilities of each spouse, their asset distribution, support payments, debt sharing, etc. If the settlement is negotiated, it can be taken to court for a judge's approval. If you go through a divorce trial, the judge will issue the final order.
Can Final Judgments Be Changed?
Yes, you have the option to appeal or modify a divorce decree. Appealing your divorce can be expensive and drawn-out, however. Furthermore, it is often difficult to get an appellate court to rule in your favor. In many cases, appeals are low probability, especially if you and your spouse agreed to a settlement agreement.
Typically, the more effective route of changing your divorce decree is to request a modification of your divorce. When filing a “motion to modify”, the courts usually require there to be a substantial change in circumstances. Some areas of divorce settlements that are commonly modified include:
- Child custody payments
- Change in custody
- Spousal support or alimony payments
Choosing to appeal or modify an existing divorce decree can be confusing and difficult for most people to navigate successfully without hiring an experienced divorce lawyer.
Do I Need To Go to Court To Get Divorced?
In most cases, yes. Even if you and your spouse agree to the terms of your divorce, it does not become legally recognized or enforceable until it is approved or ruled on by a judge. Neglecting to go through family court to have your divorce legally recognized can result in major issues such as property disputes, unfair asset allocation, ineffective custodial disagreements, etc.
If your divorce is approved or ruled on by a judge, you are legally protected if your spouse does not hold up their end of the agreement or there are significant disagreements about the implementation of your divorce plan.
Mediation, collaborative divorce, and other forms of negotiation can all be highly effective, but they should not be considered as a substitute for a judge’s final approval.
Should I Hire a Divorce Lawyer?
You have the choice to hire a divorce lawyer or not. However, in most situations, a divorce attorney is certainly an option worth your consideration. This is true whether you are going through a highly contested divorce or a more amicable divorce process.
If you are thinking about getting divorced, some of the most commonly cited ways an attorney can benefit you include:
- Help with understanding the divorce laws in your state and how they apply to your unique circumstances
- Protecting and advocating your rights
- Ensure fair negotiations
- Advice and counsel on divorce-related issues
- Connections with industry experts
- Help in communicating with your spouse
- Assistance with mediation
- Negotiate child support, spousal support, alimony, and custodial issues
- Help with paperwork, filing motions, submitting evidence, etc.
Most divorce lawyers offer a free initial consultation. So, take advantage of this opportunity to gauge how much an attorney can help you and which lawyer is the right fit for your case.
While overall cost should play a major role, it should not be the only deciding factor when hiring an attorney. Ensure that you take into account the type of experience your attorney has, their courtroom record, communication style, billing methods, etc.
How Much Will a Divorce Cost?
Exact costs associated with divorce will depend on the state where you live and the specific circumstances in your divorce case. Recent polls suggest that the average cost of a divorce in the United States is roughly $15,000. However, costs can become much higher depending on the complexity of your divorce.
Divorce lawyers take up a large percentage of the overall costs for a divorce. Most attorneys charge an upfront fee of $3k - $5k and an additional $300 - $500 per hour on top of that.
Fortunately, there are ways to save on some of the costs of your divorce. Learn more below.
Are There Ways to Decrease Costs?
Yes, there are a few proven strategies that you can use to save money on the overall cost of your divorce. Some of the most effective methods include:
- Take Mediation Seriously: Effective mediation can save you time and money on legal fees and court costs.
- Focus on Win-Win Situations: Do not go into negotiations with a “my way or the highway” mentality. This can increase distrust and make good faith negotiations nearly impossible. Focus on solutions that benefit both parties. This can reduce the time it takes to draft an agreement and dramatically decrease legal fees.
- Handle Some Things on Your Own: Hire an unbundled attorney to help you with certain parts of your case while you handle the rest on your own. Learn more about unbundled legal services below.
Save Money with an Unbundled Lawyer
If you are thinking that the cost of hiring a traditional divorce lawyer is too high, you are not alone. Each year, many people decide to file for divorce without the help of an experienced attorney due to the unaffordable costs of legal representation. This often leads to poor outcomes including being taken advantage of with unfavorable final decisions.
With unbundled legal services, you can hire an unbundled attorney to take care of the more complex parts of your case (i.e. informing you of your rights, reviewing paperwork, drafting agreements, etc.), while you take care of the rest and save thousands in legal fees.
Fees for unbundled divorce lawyers start as low as $500 - $1500. Unbundled legal services are not a good fit for every case. If your divorce is more complex, our network of unbundled attorneys also offers full representation at affordable rates.
Don’t let the complexity of the divorce process overwhelm you. Contact an Unbundled Lawyer today to get the legal help you need at an affordable price.