Because divorce law is largely a matter of state law, the divorce process is different in every state. Nevertheless, there are many similarities between states.
The Divorce Process
You (or your attorney) must first file a petition in the court that you want to hear the divorce. You must file the divorce in a state where at least one spouse resides. If there are financial issues in the case, you must file in a state that has “minimum contacts” with your spouse.
The First Step: The Petition
If there are minor children, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has additional rules for what court is the correct venue. All fifty states have adopted the UCCJEA, so the UCCJEA will apply to your case.
Many states also have laws regarding which county has jurisdiction to hear the divorce.
Most divorce courts charge a filing fee for the petition. However, the U.S. Supreme Court has ruled that if you are too poor to pay the filing fee, the divorce court must waive your filing fee and allow you to file for free.
Notifying your spouse
If a person is sued in any type of court proceeding (including divorce), they have the constitutional right to have proper notice of the lawsuit. So, you’ll have to serve notice on your spouse. The only exception to this rule is if your spouse is willing to sign a waiver of service.
Do you settle or go to trial?
You can resolve a divorce in one of two ways: you can settle the case out of court, or you can go to trial.
If you settle the case out of court, you and your spouse can draft an agreement, sign it, and ask the judge to sign it. If the judge signs your agreement, the agreement then becomes a binding order of the court. Many judges prefer that a case be settled out of court, rather than going to trial.
One way that you can settle a divorce is mediation. Mediation is a process where you and your spouse (and your attorneys, if you have attorneys) go before a mediator. A mediator is not like a judge, in that he cannot order you to do anything.
But, a mediator can try to guide you toward a settlement. A skilled mediator can be very effective in obtaining a settlement. Many of my clients, who thought the case would never settle, were pleasantly surprised when a mediator was able to settle their case.
Many divorce courts maintain lists of qualified mediators in the area; ask your divorce court if they can recommend a mediator. Some divorce courts will order mediation before they will schedule a trial.
I generally recommend that my clients settle cases out of court, rather than going to trial. There are several reasons for this:
- If you settle, you will have complete control over the outcome. You will never walk out of mediation, or a settlement conference, with an outcome to which you did not agree. However, if you go to trial, the judge will make a ruling, and you will be forced to abide by the ruling.
- Going to trial is expensive. It’s generally cheaper to settle a case out of court.
- Going to trial, particularly in a divorce case, is an emotionally draining experience.
- Going to trial takes time. It may be a year or more before your case is finalized.
Typically, the only time that I advise my divorce clients not to settle out of court, and go to trial, is:
- If the other spouse insists on an outcome that is completely one-sided or unreasonable and will not budge.
- If there are children in the marriage, and the other spouse is an abusive or unfit parent and insists on having sole or joint custody anyway.
If you go to trial
If you can’t settle out of court, and you go to trial, then, you will have the right to present evidence, and your spouse will also be allowed to present evidence. You (or your spouse) may call expert witnesses.
Expert witnesses in divorce cases often include accountants (if the property is at issue) or child psychologists (if there are children of the marriage). After the judge hears all the evidence, the judge will make a ruling.
Finalizing the divorce: the decree
When the divorce is finalized, you and your spouse (or your lawyers) will have to draft a decree. As soon as the judge signs the decree, your marriage will be dissolved.
Some states have a waiting period from the time of the divorce until the signing of the decree. For example, in Oklahoma, if there are children if the marriage, the petition must have been on file for ninety days before the court may grant a decree.
Because of the waiting period, a judge will sometimes issue a “temporary order” that will govern property and children while the divorce is pending. You may also agree to a temporary order in an out-of-court settlement. Also, after the judge signs the decree, some states have a waiting period before either spouse may remarry.
After the decree: appeal
If you went to trial, you may appeal the judge’s ruling to a state appellate court. The appeals court can then reverse or modify the judge’s ruling. If you reached an agreement by settling out of court, you can’t appeal the agreed settlement.
After the decree: a motion to modify custody
If there are children of the marriage, and circumstances have changed since the decree was signed, you (or your ex-spouse) may file a motion to modify.
You may ask the judge to change certain terms of the decree. You decide on a motion to modify in the same ways that you can decide a divorce case: either by settling out of court or by going to trial.
The divorce process is very complicated. This post only scratches the surface. Also, because divorce laws vary widely from state to state, consult a divorce attorney in your state for the most reliable information.
Attorney Kyle Persaud is the founder of Persaud Law Office based in Bartlesville, OK. Kyle has years of experience assisting the residents of Bartlesville in a variety of legal matters including family law, civil law, and estate planning. Mr. Persaud holds a B.A. from Oklahoma Wesleyan University, and a J.D. from the University of Tulsa College of Law.