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Divorce

Marriages are dissolved through divorce actions filed with the court. Additionally, the court sets the perimeters for the spouse's future dealings with each other, especially where children are involved.

Because public policy favors continuation of marriage, a divorce cannot be obtained unless the parties are separated for a period of time. The time required varies from state to state but generally, a 6-month separation is required before a spouse can file for divorce. Another waiting period occurs after the divorce is filed and before it can be granted. Typically, a divorce can be granted no earlier than 90 days after filing the petition.

A divorce is a legal action. Like any lawsuit, it can be set for trial and heard by a jury. However, due to the expense of litigation, most divorces are handled without the need for a trial. Additionally, many states have laws requiring the spouses to mediate the issues on which they disagree before setting the case for trial.

Can I handle my own divorce?

Yes. However, if you and your spouse have children, large assets and others complicated matters to decide, you should have an attorney handle the divorce.

TIP: Do not attempt to represent yourself if your spouse has an attorney. Family law courts have their own peculiar rules and operating procedures that can overwhelm and confuse the non-attorney. Simple procedural errors, such as missing a filing deadline, can lead to tragic outcomes, such as losing custody of your children.

Where do I file a divorce petition?

The petition is filed in the state and county in which you or your spouse live. There are residency requirements that you must fulfill before you can file for divorce.

I filed for divorce but I cannot find my husband to have him served. Can I still get a divorce?

Yes. If the sheriff is unable to find your husband to serve him with the divorce papers, you can "serve" him with the pending lawsuit by putting a notification in the local newspaper.

TIP: Large urban counties typically rely on specialized newspapers that print notices, filings, registrations, etc. for those in the legal profession. It will be less expensive to publish a notice in this type of paper than the city newspaper.

My wife was served with divorce papers but has never answered the lawsuit. Can I obtain a divorce?

Yes. The court can grant the divorce through a default judgment. You will simply go to court and testify before the judge to the facts surrounding your divorce petition.

TIP: Courts set aside a day or part of a day each week to hear defaults. If you are handling your own divorce and you can obtain a default decree of divorce, find out from the court clerk when default hearings are set. You will able to appear at that time and prove up the divorce.

I'm handling my own divorce and need to "prove it up." What do I do?

"Proving up" a divorce means testifying to the judge that all the legal requirements have been met, allowing her to grant the divorce. The requirements vary by state, and laws require testimony concerning many different facts and events. However, your testimony basically follows the allegations in your petition. You will need to testify as to:

  • your name, age, Social Security number and address;
  • your spouse's name, age, social security number and address;
  • your place of residence and how long you have lived in the county and state;
  • the date of your marriage;
  • the date you and your spouse separated;
  • the date you filed the divorce petition; and
  • the fact that the marriage is insupportable or irreconcilable.

SIDEBAR: Do not go before the judge unless you are prepared to testify to all the necessary requirements. The judge will not grant the divorce if you leave out an important fact.

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