After you have done your research, both into the basics of what to expect during your divorce and finding an attorney who is the right fit, you likely have a pretty good idea whether you are ready to move forward with the process.
This is not an easy decision to make, and it is fairly common to go back and forth several times throughout these early stages.
However, if you have thoroughly contemplated divorce and determine it is in your best interests to end your marriage, the next step is to determine where and how to file your divorce petition.
Where to file your divorce petition (living in same state)
Before you fill out the paperwork, you must determine which court will have jurisdiction of the case based on several factors. The first is figuring out whether or not you meet a state’s statutory residency requirement.
The majority of states require that you live there for a certain amount of time before you can file for divorce. This can range anywhere from no requirement at all to a year, though most are around six months.
When you and your spouse have lived in the same state and county for several years, you can simply file for divorce through your local circuit or superior courthouse. Many will have standardized forms available on their websites, though you can also find generic forms on other legal sites.
However, determining where to file your divorce petition can become much more complicated if you live in different states or have recently moved — particularly when children are involved.
Where to file your divorce petition (living in different states)
It is not uncommon for married couples to separate for months or even years before finally going through with a divorce. In circumstances where the husband and wife both meet the residency requirements for their respective states, it is possible to file in either.
This becomes important because each state will have distinct laws and practices for the varying aspects of divorce, such as property division, custody / visitation, alimony, etc. When you have the option to file in more than one state, it is important to look into the statutes for each to determine whether there is an advantage to file in one over the other.
An additional complication can come into play when a separated couple lives in different states and there are minor children involved.
Since almost every state has signed on to some form of the Uniform Child Custody Jurisdiction Enforcement Act, the jurisdiction for your divorce will more than likely be where the children have lived for the previous six months.
There may be some exceptions to this rule, but having children live with one parent may limit where you are able to file.
Serving your divorce petition
After you have filed your divorce petition with the proper court, you must notify your spouse with a copy of the complaint. This is known as being served, and there are several ways it can be accomplished.
The two most common methods to formally serve your spouse are personal service or through certified mail with a return receipt request.
With personal service, anyone over the age of 18 can hand-deliver the documents. This can be a family member, friend, sheriff, professional process server, etc.
Include an Acceptance of Service form for your spouse to sign and file it with the courts, which will begin the clock on your divorce action. Your spouse will typically have 30 days to file a response to your petition with the courts, though the time frame can vary by jurisdiction.
You also can serve your spouse by sending the papers via certified mail if you know their current mailing address, though you may need to prove you tried other service methods without success.
Finally, if you are unsure where you spouse currently lives after making a comprehensive effort to locate them, you may be able to use a method known as service by publication. This entails publishing a notice of your intent to divorce in a local newspaper, which will result in a default divorce.
This method should be a last resort, as a default divorce can later be disputed at a later date. Additionally, it may not be an option in all states and often requires definitive proof of your efforts to find your spouse to have them actively involved in the process.
Being served a divorce petition
If you are on the receiving end and are served with divorce papers by your spouse, it is crucial that you get in contact with an attorney immediately. Service marks kickoff time for the divorce process, and the clock starts ticking on when you must file your response.
The divorce papers will include a variety of requests, such as your spouse’s proposals for custody, property division and maintenance. In your response, you are able to admit or deny these proposals and state your reasons, which is a critical first step.
For example, if your wife requests sole legal and physical custody in the divorce petition, this is your first opportunity to make your case for shared or joint custody. An attorney will be familiar with the kind of language judges and courts like to see, as well as the response process for your state.
Failing to submit your response in time will result in the court assuming you agree with everything the opposing party stated in their original petition and result in a default judgement against you, which could obviously result in a very unfair divorce.
Additionally, the default judgement may be extremely difficult to overturn if you simply neglected to respond to the petition.
Filing is the first step down the long and bumpy road that is divorce and also offers your first taste of the complicated legal procedures you will encounter.
From determining where exactly you have file your petition to ensuring you follow the proper steps for service, you will now have your first glimpse of what lies ahead.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”
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