Getting divorced can be much more complicated than getting married. The process required to end a marriage also involves lots more interaction with the legal system and, in some cases, can require the help of attorneys, many thousands of dollars in legal fees and years of time. The divorce process varies widely by state and by individual case, but at minimum generally includes common elements such as filing, serving and responding to a petition, appearing at a temporary hearing and signing a final settlement. Ask a financial advisor how to protect your assets against potential loss due to a potential divorce.
How a Divorce Works
Divorce is governed by states, not the federal government, and the steps in the process vary considerably by state. Some states, for instance, require a married couple to live apart for a period of as long as 18 months before they can get divorced. Others don’t require living separately but do mandate a waiting period of as long as a year before a divorce can be completed.
Sometimes a divorce can be completed as soon as the required waiting period is complete, which can be weeks or months. In New Hampshire, which has no waiting period, an uncontested and uncomplicated divorce can be done in as little as a month. When a case goes to court, on the other hand, it often takes years.
The Divorce Process
It’s essential to consult laws in your state before beginning the process of divorce. What works in one state often will not satisfy requirements in another. Before going through a divorce you may want to consider the financial impact and plan accordingly. After that, generally, a divorce follows these steps:
1. Filing a Divorce Petition
The divorce typically process begins with filing a divorce petition. One partner, called the petitioner, writes the petition. It identifies the two partners and any children, gives the reasons for the divorce, describes a property that will be affected by the split and spells out requests for child custody, support and alimony.
2. Formal Notification
After the petition has been filed, the other spouse has to be formally notified. This usually means having a copy of the petition delivered to the non-filing spouse by a process server.
3. Petition Response
After the non-filing partner has been served, he or she may respond to the petition disagreeing with the facts it presents and suggesting alternative terms. A copy of the response is filed with the court and the filing partner gets served with a copy as well.
4. Default Judgment Decision
If there is no response to the petition by a set time, usually a few to several weeks, the court may enter a default judgment enforcing the terms of the divorce as laid out in the original petition. If the non-filing partner does respond, whether agreeing or disagreeing, the next step is usually a temporary hearing.
5. Temporary Hearing
At the temporary hearing, the court will settle, for the moment, issues such as child custody, child support, restraining orders and how much each partner will contribute toward marital expenses pending final settlement. The hearing will also lay out any limits restricting what the partners can do with joint assets such as homes, bank accounts and investments.
6. Judge Ruling
If the parties agree to the terms and the required waiting period, if any, has elapsed, the judge may enter a judgment declaring the marriage ended. One or both parties may have to attend a final hearing and give evidence that they have fulfilled the requirements for obtaining a divorce.
After both parties sign the settlement agreement and it is filed with the court, they are legally bound to carry out any requirements it describes, such as parenting arrangements, property division and financial support. When minor children are involved, in some states parents must attend divorce parenting classes. This can be delayed if the couple has more complicated assets that need further discussion or if one party is worried about taxes.
If the parties are unable to agree to a settlement, the next step is often mediation. Many states require divorcing couples to attend one or more mediation sessions before going to court. At these meetings, usually assisted by their legal representation and a trained mediator, they will attempt to produce a settlement acceptable to both parties. If successful, they can take the settlement to the judge, who can enter a judgment ending the marriage on those terms.
If all attempts to reach an agreement outside of court fail, the case will go to trial. This may involve a few too many additional hearings, motions and other steps, such as preparing evidence, calling witnesses and testifying in court. If minor children are involved and parents can’t agree on custody arrangements, both partners may have to undergo custody evaluations calling for psychological reports and investigations.
9. Final Judgment
When both parties have had their day in court, the court will render a judgment on the merits of the case. The two parties will sign the agreement, which will be filed with the court and officially end the marriage.
The Bottom Line
The process required to dissolve a marriage varies greatly from state to state but generally begins with one of the spouses filing a divorce petition. The next step is to notify the other partner of the divorce petition. After that, the process can again vary widely, depending on whether the non-filing partner responds to the petition, and whether the two parties can easily agree to the terms of the split and local laws. If a divorce is uncontested, a marriage can be dissolved in a matter of weeks or months. If the parties can’t agree, it can take years and involve multiple court appearances.
Tips for Navigating a Divorce
- A financial advisor is an important member of the team when you are going through a divorce. Luckily, if you don’t already have a financial advisor then finding one doesn’t have to be hard. SmartAsset’s free tool matches you with up to three financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
- Divorce can be a financial disaster for one or both former partners. The sky is the limit for legal bills in a highly adversarial divorce. If splitting up assets requires selling real estate, investments or business interests in a down market, it can be more expensive yet. Fortunately, there are moves you can make to protect your assets from divorce, such as obtaining a prenuptial agreement and residing in a state where divorcing spouses retain their separate property.
Photo credit: ©iStock.com/Pattanaphong Khuankaew, ©iStock.com/dusanpetkovic, ©iStock.com/T Turovska