A petition for divorce is the document that begins the divorce process. 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, and about child support and the amount of time each party will spend with the children.
The first step in the divorce process is to draft the petition. The initial paragraphs will address information about the parties, such as their names and birth dates, where and when the marriage took place, whether the couple is still living together or has separated (and if so, when). It will set forth information that gives the court jurisdiction over the divorce (typically, this will be a statement that the petitioner or the respondent has lived in the state for the required amount of time).
The petition will also include information about children:
The petition will also contain paragraphs addressing the division of any property. Typically, there will be paragraphs stating:
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 choose to file for a fault-based divorce, which means the ground for divorce is that one spouse engaged in misconduct that led to the breakdown of the marriage. 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. If there was violence, the innocent spouse may get custody of the children and the spouse who was in the wrong may lose parenting time with the children. Fault cases typically take longer to resolve in court because you have to provide admissible evidence and prove to a judge the misconduct occurred and that it caused the divorce.
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. It is not necessary to prove fault, but 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. There’s no need to identify and prove misconduct or a bad act that caused the divorce. This often allows for a more efficient and streamlined divorce proceeding.
The next thing the petitioner must do is serve the petition on the respondent. “Serve” is a technical legal term in this case. It means that a person unconnected to the parties (usually the county sheriff or a private service agency) will find the respondent and place a copy of the petition directly in their hands.
Sometimes the respondent will refuse to accept the petition; will duck service by hiding; or it is simply not possible to find the respondent. It is still possible to complete service. Divorce from a missing spouse can indeed be done. This usually involves posting a notice in a court-approved local or legal newspaper, which informs the other party that a petition for divorce has been filed.
After a specified amount of time, the court may proceed with the divorce process without the other party being present. Most often, a default judgment will be ordered, meaning the petitioner will get everything they asked for in the petition.
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. For example, the petition will contain two paragraphs concerning the parties’ birth dates and ages. If those are paragraphs numbers 5 and 6 of the petition, then the response will have paragraphs 5 and 6 stating “I agree” or “I do not agree.”
The petition is a detailed, long document, setting forth all the facts necessary to give the court jurisdiction over the divorce and the petitioner’s statements and requests. The response is much shorter, because it primarily consists of saying “I agree” or “I do not agree” to each of the petition’s paragraphs.
It can sometimes be difficult to tell what all your options are in terms of divorce. You may need to hire a qualified divorce lawyer if you need advice or representation regarding any types of legal issues.
An attorney can provide you with advice on how to proceed, and 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. One of the attorney’s most important responsibilities is to draft the divorce petition, making sure to include every piece of relevant information.
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 carefully and thoroughly, and obtain the best possible result for you and your family.
Family law is a specialized field and a simple mistake on your paperwork can have life-long ramifications or unintended consequences. Because the stakes are so high and personal 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.
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