The divorce process can often be lengthy and somewhat complicated. This is especially true for persons who have been married for a long time, and have complex property issues to deal with.
Some tips when filing divorce papers include:
- Attempt to be cooperative- being “difficult” or evasive will only complicate the process and may make the process more lengthy and expensive in the long run
- Think ahead- be sure to note any issues that you think might be of immediate concern, such as any outstanding debt or property issues
- Laws are different by state- be sure that you understand that divorce laws are very different from region to region. Don’t go by what others say regarding the law; speak to a professional if you have any questions regarding the laws in your area
- Be honest when making disclosures- laws prohibit persons from concealing hidden assets in a divorce proceeding
Lastly, speak up. If you have any questions or concerns at all, don’t let it pass by. Speak to an attorney if you feel that you need more advice or guidance on an issue. Some areas of divorce proceedings that often need clarification have to do with spousal support, division of property, child support/custody/visitation, and remarriage issues.
What is a Petition for Divorce?
Filing a petition for divorce is the way you begin a divorce. One spouse, called the petitioner, serves the petition on the other party, called the respondent. The petition contains all of the petitioner’s preferences on how assets should be shared, about child support and the amount of time each party will spend with the children, and many more issues.
What Should be Contained in a Petition for Divorce?
The initial paragraphs will address information about the parties, such as their names and birth dates, whether the couple is still living together or has separated (and if so, when), where and when the marriage took place, and how long the petitioner or the respondent has lived in the state.
The petition will also include information about children:
- Names
- Birth dates
- Who are they living with
- Does either party have other children that are not from the marriage?
- Who should the children live with after the divorce?
- How many days a week each party should spend with the children?
- Who will pay child support, and how much is requested?
The petition will also contain paragraphs addressing the division of any personal property. Typically, there will be paragraphs stating:
- Who will get the marital home, or will it be sold
- Who will get each car, boat, motorcycle, or other vehicle
- Who will get specific items of personal property
- What are the parties’ financial assets: bank accounts, investments, retirement savings, pension plans, etc. Each of these will get a separate paragraph and will state whom the petitioner believes should be awarded each asset
- What are the parties’ debts: credit cards, loans, mortgages, etc. Again, each of these paragraphs wll state whom the petitioner believes should be awarded each debt
Will the Petition State Why the Couple is Divorcing?
Formerly, the state would not allow a couple to divorce unless one of the parties did something wrong – was “at fault.” The possible accusations vary from state to state, but the most common fault grounds include adultery, abandonment, abuse, and addiction to alcohol or drugs. That is not necessary any longer, in any state.
However, in several states spouses can still choose to file for a fault-based divorce. There may be advantages to the petitioner to inform the court of the other party’s wrongdoing. For example, in an at-fault divorce, a greater share of property may sometimes go to the party that wasn’t at fault.
Modernly, every state has specific laws allowing no-fault divorce. In this type of divorce the couple does not need to actually state any specific dispute or wrongdoing as the basis of the divorce. Divorcing spouses must still identify a ground (reason) for their divorce when they file.
People can simply cite “irreconcilable differences,” which is also referred to as the “irretrievable” or “irremediable breakdown of the marriage,” depending on where they live. These terms refer to the same basic concept—that the couple simply can’t get along anymore, there is no chance of a reconciliation, and the marriage is broken beyond repair.
The next step is that the respondent must file a response with the court. It will match the petition paragraph by paragraph, stating whether the respondent agrees or disagrees with the petitioner’s position.
Are There Any Alternatives to Divorce?
Depending on the reason for divorce, different legal proceedings may be more appropriate.
Annulment
Annulment may be more appropriate than a divorce. The main difference between divorce and annulled marriages is that a divorce terminates a marriage, but recognizes that the marriage existed. An annulment views the couple’s marriage as if it never legally occurred. Some people choose to have their marriage annulled for religious reasons.
Grounds for annulment are limited. Most state require that one of the following events happened:
- Incest (marriage to a close relative)
- Bigamy (marriage to more than one person at a time)
- Coercion (when one party was forced or threatened to get married)
- One or both parties were underage
- Mental impairment (one party was not competent to enter into a marriage)
- Immigration fraud (one party never intended to marry in the usual sense of that word, but was only getting married for some immigration benefit)
Legal Separation
In some cases, legal separation may be a better option than divorce. “Legal separation” involves the creation of a court-approved binding agreement between the parties. The agreement sets out the particular guidelines that the couple must follow while living apart (notably, it is not necessary to actually live apart – the couple can have a legal separation even if they still live together).
This includes items such as how they will manage their affairs and assets, and what each party’s obligations and rights with regards to children are. The considerations taken into account in a legal separation are precisely those which are considered in a divorce.
Entering into a legal separation has the benefit that in order to create it, the couple must define and negotiate exactly how their split will be handled, detail by detail. This helps ensure that the parties are on the same page about all of the questions that will arise as they break up.
Top 8 Things to Consider When Filing for Divorce
- Don’t increase your debt
- Don’t forget to change your will and insurance beneficiaries
- Don’t dismiss the possibility of mediation.
- Don’t take it out on the kids.
- Don’t say bad things about your ex to the kids
- Don’t forget about discussing taxes in the divorce paperwork
- Don’t settle early – take time to really think about each decision
- Don’t get pregnant
Do I Need a Lawyer for Help With a Petition for a Divorce?
Lawyers have their advantages. They’re often aware of long-term concerns that you may not consider. For example, when deciding on child support, will the court impute future income to a spouse who has a sunny financial future? Lawyers also offer a shield – all correspondence and contact can be directed through the lawyer’s office if things are, or get, ugly.
A divorce attorney can also inform you of the possible outcomes and consequences of each option. If you need to appear in court or attend any meetings, your lawyer can be there to represent you.
If your spouse has a lawyer, you should consult with an attorney as soon as possible. Once your spouse has lawyered up, you need to hire an experienced attorney who can explain your rights and responsibilities, prepare the necessary legal documents thoroughly and carefully, and obtain the best possible result for you.
Because the stakes are so high in a divorce, unless there are no children and the parties agree on every aspect of dividing assets and liabilities, it’s best not to try to handle the divorce on your own.
