The Divorce Petition: The First Step

The Divorce Petition: The First Step

Most people do not enter into the decision to file for divorce lightly. The divorce process can be a civilized event between two spouses. However, in many cases, it is a rather ugly experience. There are a few different ways to go about filing a divorce petition. How you want to file the divorce petition will depend on your relationship with the respondent, your current spouse.

Filing the divorce petition

The typical divorce: Filing as the petitioner

The most common way to file for a divorce is by filling out a divorce petition and filing it with the court. The person who files the papers initiating the case is known as the “petitioner.” The spouse who did not file for divorce is known as the “respondent.”

The petitioner can fill out the divorce petition and file it with the court on a pro se basis. “Pro se” means that you do not have an attorney representing your interests; rather, you are representing yourself in the divorce.

The petitioner can also choose to retain an attorney to represent him or her. In this case, the attorney, at the request and instruction of the petitioner, would fill out the divorce petition paperwork and file the paperwork with the court. If you hire an attorney to represent you, there will be attorney’s fees associated with that representation. In some cases, you can request, within the divorce petition, to be compensated in the divorce decree for those attorney’s fees. Reimbursement for attorney’s fees is not guaranteed. It is in the hands of the court to decide who should be reimbursed for such fees.

Uncontested divorce

If you and your spouse are in agreement in the dissolution of your marriage, you can jointly file for an uncontested divorce. In order to request an uncontested divorce, you and your spouse must agree upon all matters related to the divorce. Some of the items that you will need to consider and agree upon together include the distribution of financial accounts, property ownership, and custody and child support arrangements (if applicable). It is important to know that even when you and your spouse agree, a judge must approve your agreement before it is valid and enforceable.

Summary dissolution

A summary dissolution of marriage is a way to file for an expedited divorce. There are criteria that a couple must meet to qualify to file a summary dissolution. Usually, a couple that qualifies has no children; very little, if any at all, property ownership; little to no debt or financial assets; and no request for continued financial support from the other after the divorce is complete. In this situation, you and your spouse must be in agreement in all the terms of the dissolution of the marriage.

Summary dissolution

Regardless of how you decide to file for divorce, laws, rules and fees are different in every state and county. Look for an attorney licensed in your state who is familiar with family law and can help you navigate the divorce process.

Serving the divorce petition

The person filing the divorce petition is responsible for serving the non-filing spouse with a copy of the divorce. This is known as “serving” the petition, and it can only be accomplished in ways specified under state law.

Serving the divorce petition is always required. There are deadlines and methods that are required to be met in any location in which you file for divorce. These deadlines and rules for serving documents vary from state to state and county to county. For that reason, it is critical that you speak with an attorney licensed in your state to make sure your spouse is properly served. However, some of the common ways service is accomplished are outlined below.

Serving the divorce petition in person

Perhaps the safest way to serve a divorce petition is in person, directly to the respondent. If your spouse is agreeable, you can hand the documents to your spouse and in return ask your spouse to sign an affidavit confirming receipt of the divorce petition.

If your spouse is not agreeable, you can have the divorce petition personally served through the sheriff or a professional process server. In this situation, the professional server will confirm the identity of the respondent, personally hand the respondent the paperwork, and orally inform the respondent of confirmation of service. Once personal service is completed, the professional process server will sign an affidavit confirming date, time, and location of the personal service.

Serving the divorce petition by mail

In some cases, you can serve your spouse the divorce petition by certified mail. This is usually only in special circumstances as outlined by state law. In some cases, you may be required to obtain a court order approving service by certified mail.

Serving the divorce petition by publication

In rare cases, you may be required to serve the respondent by publication. This means that you will have a newspaper publish the notice that a divorce petition has been filed, which will require you to outline some specifics of your divorce proceedings in that newspaper. This usually only applies if the respondent cannot be personally served. If you do not know where your spouse is, or if the respondent is successfully dodging the professional process server, the court may grant you permission to provide service on the respondent through publication.

The rules, costs and requirements for filing and serving the divorce petition depends on the law of the state and county where you live, so if you decide to use them, make sure you consult with an attorney licensed in your state.

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