The Basics of Filing for Divorce: Part II

filing for divorce

Kristen M. Buzzelli, Contributing Author

Filing for divorce can sometimes become even more complicated if your spouse knows it is coming and actively avoids service, or if you simply do not know where she currently lives. Additionally, if you are served with divorce papers, it immediately starts the clock and leaves you little time to prepare.

Having a basic understanding of what to expect from both the position of petitioner and respondent is very useful when taking that first step down the long and difficult road that leads to divorce.

Service by publication

If you do not know where your spouse currently resides, the divorce process can be much more expensive. Many states will allow you to serve her at work if you do not know where she lives. If she is trying to hide from accepting service, or if you know where she will be at a particular time, your best option is to hire a private process server. Private process servers are more expensive, but you can coordinate the time and place of service with them, which allows you more flexibility and a greater chance of success.

filing for divorce
Photo By: Ian Lamont
A newspaper ad can be used to serve your spouse by publication if you don’t know where they live.

If you have no information about where she might be, you should consider hiring a private investigator. Although private investigators can be more expensive, personally serving your spouse with divorce papers is the most effective method of obtaining a divorce.

If you cannot afford a private investigator, or their investigation is unsuccessful, you will then have to serve your spouse through publication. You or your attorney will have to take out an advertisement in the local newspapers to notify your spouse of a potential divorce. This method is less effective because it results in a default divorce. If your spouse later learns of the default divorce, she may come back to court and request that the divorce process begin again so that she may be an active participant in the process.

If you are served

If you are served with a divorce petition, you will have 30 days to respond. If you wish to hire an attorney, begin looking for one immediately as an attorney may need some time to prepare your response. Your attorney will need to file an answer and counter-petition for divorce within 30 days. If your 30 days have passed, the attorney can file a motion to answer out of time and ask the judge for permission to file an answer in the case. If you do not wish to hire an attorney, you should look at the local pro se or self-represent websites to see if they can provide any helpful information for your situation.

You should always consider hiring an attorney if you believe your divorce case is contested. A contested divorce means that you disagree with your spouse over elements of the case, such as custody, spousal support (also called alimony or maintenance) or property division. An attorney can help you protect your rights in these areas. You may still wish to consider an attorney even if the case is uncontested, as attorneys can put language into your final decree that can prevent future problems. For example, if you and your spouse choose to sell the marital home, you need language in the decree to cover closing costs, paying utilities until closing and repairs to the residence.

Preparing for divorce

Whether you are served with a divorce petition or you are filing the petition yourself, the best thing that you can do to prepare for the divorce process is to protect your important information. Start by making copies of all important documents, including supporting documentation of all assets and debts. In particular, make copies of tax returns, credit card statements, bank statements, title documents, retirement accounts and so on. Do not destroy or remove any information. Keep the originals where you always kept them during the marriage. Take your copies and remove them from the marital home, and keep them at a protected location such as a safe or family member’s home. These original documents are discoverable evidence during the divorce process. If you destroy these documents, you are giving the other side an argument that you are hiding assets as well as opening yourself up to sanctions from the court for spoliation (destruction) of admissible evidence.

By: Keith Williamson
Making copies of all your important documents and storing them in a safe place should be a priority if you are considering filing for divorce.

If you have minor children, you also want to protect their information. Make copies of birth certificates, social security cards and insurance cards. Also, make sure you are on the authorized pick up list from the children’s school and/or daycare. This reduces the possibility that your spouse will kidnap the minor children. If you are expecting your custody case to be contested, you may also want to pick up the minor children’s school records, daycare records, daycare invoices and medical records. This information can sometimes be helpful with contested custody cases.

All states consider your involvement in the children’s lives when making awards for custody or parenting time. If there is a possibility that custody will be contested, you should also use the time prior to divorce to become familiar with professionals in your children’s lives, if you are not already. Building a relationship with the children’s teachers, coaches, doctors, babysitters and so on can be extremely helpful as these people may be called on to testify in court. Discussions with these professionals will also help you testify knowledgeably about what your children need to do to improve their health and school grades.

Ending your marriage is never easy, and taking that first official step in filing for divorce can be particularly difficult. Make sure you obtain accurate legal counsel prior to moving forward with the court, and if you are surprised with a set of papers, get your own attorney immediately. There is a long road ahead, and you will want the best guidance possible once you are officially set down that path.

Editor’s Note: This is the conclusion of a two-part series outlining the basics of filing for divorce.

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