Understanding the Divorce Process

Whether or not you consider yourself a big cinema fan, it was likely hard to avoid the news of Olivia Wilde getting served custody papers at her own speech during CinemaCon this past summer. The sudden serving prompted many bystanders to wonder how the separation, custody, and divorce process works, from the initial filing to serving to the moment the judge signs the divorce order.

The legal steps of a divorce can get complicated fast, especially when both partners disagree about the details. Whether you’re considering getting a divorce or you’d simply like to learn more about how the divorce process works, here’s what you should know about this contentious practice.

Table of Contents

Separation

For many couples, separation is the first step in the divorce process. This is often the case for couples who need more time to decide whether or not a legal divorce is necessary, or whether the separation will just be a temporary break from the marriage.

It’s worth noting that couples can choose to separate on their own, putting their marriage on hold by moving to different properties and living separate lives, or they can choose legal separation. This option is less common, but it can be a helpful step for couples who aren’t yet ready to sever ties.

A legal separation is a formal decision from a court. This agreement involves dividing your assets, property, and finances. It also establishes responsibilities and custody of dependents or children.

Unlike a divorce, the marriage does not end. For some families, this feels beneficial in the case that both partners change their minds, as it’s possible to reverse a legal separation. It also means that the family stays together in the legal sense, and it can also be attractive for financial or religious reasons.

Filing for Divorce

If you know you’re ready for a legal divorce, let’s take a look at how a divorce works from the start.

To file for divorce, you’ll have to consider your grounds for it.

First, you can opt for a no-fault divorce, which can happen when couples have “irreconcilable differences” that are not the fault of anyone in particular.

Second is a fault-based divorce, which lists a specific complaint such as abandonment or abuse. These divorces require you to prove the truth of the complaint. However, doing so may sometimes sway the judge’s decisions about property or spousal support.

Once you’ve filled out the petition, you’ll bring it to your city court, along with any filing fees and additional documents your state requires.

Serving the Divorce Papers

To move your divorce forward, it’s crucial to “serve,” the papers to your spouse. If you prefer, you can do it yourself, ask a neutral party to do it, or get your sheriff’s office to do it. In some states, you can also deliver them by mail, publish the information in your local paper, or have a professional service deliver the papers on your behalf.

This needs to happen within a short period after filing for divorce, often 30 days. You’ll then file proof of service, including a copy of the paperwork you served your spouse.

Default Divorce

If your spouse doesn’t respond after you’ve served the papers, what happens?

Your spouse will have a brief period of time—usually under 30 days—to respond. If they fail to do so, you can petition for a default divorce. This type of divorce means the court gives you everything you requested in your initial filing.

Traditional Divorce

If your partner does respond after you’ve served the papers, you’ll proceed with a traditional divorce process. This process can take between a few weeks to a few months, depending on where you’re filing and the complexity of your case. Here’s what to expect.

Temporary Divorce Order

Due to the length of the traditional divorce process, many couples choose to seek a temporary court order. This can resolve any pressing issues while the divorce process continues. You may need a temporary divorce order if:

There are children involved, and child support and custody are contentious issues
You need a restraining order for domestic violence
Your joint finances and expenses are contentious
You need spousal support while your case is pending
You don’t want your spouse to use or sell joint property

Though a temporary divorce order isn’t permanent, it can be a helpful balm while you’re struggling through the rest of the process for a few months.

Settlement

If you and your spouse disagree on one or more matters like child custody and the division of property, the first step is to negotiate a settlement. This involves coming to an agreement over any contentious matters of your divorce. Once you do so, a judge will sign the settlement agreement and include it as part of the divorce ruling.

Trial

If you’re unable to negotiate with your spouse, you’ll face a divorce trial. These can be long and costly, so it’s always better to come to an agreement during the settlement process when possible.

During a trial, you and your spouse will present evidence, witnesses, and testimony to support your demands. This may include expert recommendations on how much time children should spend with each parent, or you might offer proof of income or liabilities. As you might expect, preparing this information can often become tedious, costly, and invasive.

After the court considers this evidence, it will make a binding decision. Once the judge signs the papers, your marriage is dissolved.