Although every divorce is different, there is a general timeline of how divorces typically proceed. The stages can loosely be grouped into three stages: pleadings, discovery, and settlement negotiations and trial. However, there are many variations, depending on the law of the state where the case is pending, the parties, and the individual case. If you have specific questions about how divorce proceedings work in your state, it’s important that you contact a lawyer who is licensed in that state.
The petition or complaint
In every U.S. jurisdiction, a divorce case is started when one spouse files a document with the court that starts the proceedings. The name of this document varies from state to state, but it is usually called a “petition” or a “complaint.” The petition lays out certain facts of the case, such as when the parties married, where they each live, and whether they have children.
The petition also tells the court what the person filing the document wants. This certainly includes a divorce, which is a legal end to the parties’ marriage. However, it also includes issues specific to the couple, such as custody of the parties’ children, alimony, and ownership of certain property. A copy of the petition is delivered through court-approved means to the other spouse. This puts that person on notice that a divorce is being sought. It also triggers that person’s duty to file a formal response with the court, known as an “answer.”
When the other spouse receives the petition, it is accompanied by a document called a “summons.” This document tells the person important information about what they must, and must not, do now that a divorce case has been filed with the court. For example, the summons tells the person how long they have to file an answer with the court. In most states, either the summons or other document delivered with the petition tells the person not to dispose of marital property and not to spend excess marital funds while the divorce case is pending.
Next, the responding spouse files his or her answer with the court. In the answer, the responding spouse must admit or deny each of the facts in the petition. In addition, the spouse filing the answer tells the court what he or she wants, such as custody of the parties’ children, alimony, or ownership of certain marital property.
The petition and the answer frame the issues in the case, along with any valid prenuptial agreements signed by the parties.
After the issues are framed, the parties must exchange information with each other. This involves collecting detailed information about property and financial matters, such as the parties’ home and mortgage; bank accounts; personal property, such as cars; and intangible property, such as stocks, bonds, and retirement accounts, as well as all debts. They then exchange this information.
In contested cases, the parties may also file what is called “discovery” on each other. Each state has laws that provide for the formal exchange of information in lawsuits, including family law cases, such as divorces. For example, the parties to a divorce may be required to answer written questions (interrogatories) or oral questions (depositions). They may also be required to give each other specific documents or access to other documents, such as tax returns and employment information. When a divorce case includes discovery, it is important to consult with an experienced, licensed attorney in the state where the case is pending.
Often, exchanging information leads the parties to begin to discuss settling the case.
Settlement negotiations and trial
Settlement negotiations may take place at any time while a divorce case is pending. However, they become more common after information is exchanged because the parties know much more about all the issues in the case. In fact, some states require the couple to attempt to make agreements about how to resolve important issues through processes such as mediation and collaborative divorce. These include issues such as child custody and visitation, spousal support (often known as “spousal maintenance” or “alimony”), and property and debt division.
If the couple can agree on these issues, they (or their attorneys) can create a document called a “settlement agreement” for all of some of those issues. However, this document must be approved by the court before it is valid and enforceable.
A trial will be held on any issues not encompassed in the couple’s court-approved agreement. At the trial, both sides have the opportunity to present evidence on the issues that are still in dispute.
The divorce is not final until the judge signs an order saying that it is over. In some states, the order may not be entered until a waiting period passes. This time period usually starts when the petition is filed and lasts for six to 12 months.
Divorce is a type of legal case that is governed by the laws of the state where it is pending. It is important that when you need advice about your marriage or divorce, you consult with a licensed attorney in your state.