Considerations in Initiating a Divorce
Initiating a Divorce Action
When planning our weddings, many of us have visions of what wedded bliss will look like. In most of our plans, divorce is not a topic that we want to broach or even imagine could be possible. But what if the seemingly impossible becomes possible? What steps should one take in filing a divorce?
If there is a prenuptial agreement in place, that will be the first item that the litigant will want to consider prior to filing. A prenuptial agreement is an agreement between two people prior to entering a marriage that contractually determines property issues. Most states will honor a prenuptial agreement, and the court will enforce those provisions if they meet the statutory requirements of the state. If there is a prenuptial agreement, the first step should be to consult with an attorney regarding the parties’ legal rights under the agreement.
While the law allows people to represent themselves in a divorce proceeding, it is usually a good idea to consult a family law attorney. The attorney will be able to inform the litigant about the applicable laws, and the attorney can educate the client regarding how the divorce process works.
If one does decide to represent oneself in a divorce case (called a “pro se litigant”), one may want to consider visiting a law library in the area prior to filing the suit or speaking directly with the clerk of the family law court. Many law libraries and courts will assist pro se litigants, and in most cases, the staff is more than willing to point the pro se litigant in the right direction. Most states have online legal forms resources that a pro se litigant can access to properly file a divorce action.
If an attorney is retained, the cost of legal fees will usually be determined by the attorney’s hourly rate. However, some attorneys handle divorces for a flat fee or a flat rate payment structure with variable costs. The amount an attorney will change is based on factors such as the attorney’s number of years in practice, the customary fees charged by other similarly situated attorneys in the geographical area, and whether the attorney is board certified in the field. Hourly rates can range from $100.00 to $500.00 per hour, or more, depending on a variety of factors. In many instances, the parties themselves drive the cost of their divorce. The complexity of the issues, such as whether there is a custody battle, the size of the marital estate, and issues such as alimony or spousal maintenance are also factors in the total cost of a divorce.
Prior to filing a divorce, couples may also want to consider the collaborative law process (where available). The collaborative process is a legal process that allows divorcing parties to work with their lawyers and other professionals to avoid courtroom litigation and the high cost of a divorce. The collaborative process enables couples to create their own divorce without the stress of going to court and appearing before a judge.
The next question to consider is where to file the divorce action. State courts have jurisdiction over divorce proceedings, but the key question is whether a given state is the appropriate state in which to file. This is a question of proper “jurisdiction” and “venue” for the action. Jurisdiction refers to the question of whether the courts of a given state have the authority over a given matter and venue refers to the place (such as the county) where the suit will be heard. Most states have their own residency requirements for filing a divorce, and one needs to review the state’s laws regarding jurisdiction and venue before filing an action.
For instance, in Texas, to file in the state, the plaintiff must have lived in Texas for at least six months and in the county of the filing for at least 90 days prior to filing. If the spouse resides in a different state or county, it may be more appropriate to file in that state and/or county, if the law permits. Keep in mind that each court has its own filing fees, though in some cases, filing fees may be waived for indigent litigants.
Many courts and counties have local court rules. Such rules will not be included in the state statutes, but are typically posted on the court’s website. Keeping abreast of any such rule is critical to smoothly running a divorce action.
A divorce “petition” or “complaint” is like a wish list. In the complaint, the plaintiff is advising the court of the issues related to the divorce. Those issues may include property to be divided, the grounds for divorce, custody of children, and other matters related to the cause of action.
Once it has been determined which court to file the case in, the plaintiff needs to draft the complaint, which states the grounds for the dissolution of the marriage. States vary on the appropriate grounds for a divorce. Example of grounds include, cruelty, adultery, conviction of a felony, abandonment, living separate and apart for three years and confinement to a mental hospital. These are “fault” divorce grounds. The plaintiff alleges that the other party has committed one or more acts that entitle the other party to divorce. (They don’t necessarily have to be morally wrong – an illness may qualify – but they need to establish why it would be unfair to expect the plaintiff to continue being marries to the defendant.) If the one spouse can prove that the other spouse is more at fault for the break-up of the marriage, he or she may be entitled to a greater share of the marital estate.
Additionally, all states now have some form of “no-fault” divorce which will allow parties to get divorced without having to allege that one party was at fault for the breakup of the marriage.[iii] In a no-fault divorce, the plaintiff is filing the divorce action requesting the dissolution of the marriage on the ground of unsupportability. In other words, he or she is alleging that the marriage has become unworkable and that there is no hope of reconciliation.
If there are children involved, their information should be included in the complaint even if custody, support, visitation, and access have already been determined. If there are already orders in place regarding the children, those should be referenced in the divorce complaint. If there are no provisions in place regarding the children, the complaint must state the requested disposition of those issues.
Another item that should be included in the petition is whether there are assets and/or debts in the marital estate, be they separate assets or “community” assets, which mean assets shared by the spouses. This is especially important in states that recognize the concept of “community” property,” though this is only a minority of states. Additionally, if the plaintiff is requesting alimony or spousal maintenance, the request should be included in the complaint. Alimony allows a spouse with a lower income, or who has not, or cannot work full time to request support payments from the higher income earner, or working spouse. [iv]
Many states also allow a divorcing spouse to change her name through the divorce process. If a spouse wishes to change her name at the time of the divorce, she should plead for the name change in the petition. Changing it through the divorce process is much simpler than filing a separate action for change of name.
All states have waiting periods prior to finalizing the divorce. In Texas, for example, a person must wait at least 61 days before she can officially obtain their divorce. Because of the waiting periods, courts allow parties to enter into temporary or interim orders while their cases are pending. Such requests can be made in the complaint for divorce or later on. Temporary orders may be to put orders in place regarding subjects like child custody, alimony, what bills each party is responsible for, temporary award of property, and rights that each party has during the pendency of the case.
Once the complaint is filed, it must be served on the other (“defendant”) spouse. The defendant spouse can sign a waiver of service, but if he does not, then the suit papers (summons and complaint) must be served in accordance with general service of process rules. In some cases, the filing party does not know the whereabouts of the other spouse. In such case, the plaintiff can still proceed with the divorce, but will need to have the other spouse served via publication. Service by publication gives the non-filing spouse notice of the lawsuit through a newspaper ad or by a posting at the courthouse. Such service will be deemed valid service if it complies with applicable state law, which often requires that the plaintiff show that the defendant is unreachable.
Once the complaint has been filed, and the responding party has been properly served, the case has been initiated and moves to the next stages, which are the subject of other presentations.