At Ascent Law we’ve received a lot of reviews. You can read out testimonials here. But now let’s talk about you. You’ve decided you’re ready to get divorced, but what do you need to do next? You need to learn how the process works. While divorce is generally an adversarial action, pitting spouse against spouse, the following articles and legal resources are tailored toward helping individuals navigate the process as smoothly as possible.
Legal Requirements to Divorce
You first need to consider where to file for divorce. Typically, this is the county and state where one or both of you live. First, determine if you meet the state’s residency requirements. If you or your spouses are in the military, you may file where currently stationed. However, there are rules to protect active duty service members from civil lawsuits. For more, read the articles on residency, eligibility for divorce, and military divorces here.
Completing and Filing Divorce Petitions
To complete the divorce petition, first consider whether you want a “no fault” or “fault” divorce. Fault divorces are for things such as abuse or adultery, read more in the articles below. If you don’t have any kids or many assets, you could get a “summary” divorce. With children, there’s child custody and child support papers to complete. Find articles explaining the types of divorces, the typical timeline, and even how to change your name in this section. You can complete divorce forms on your own, at a self-help legal clinic, or with a lawyer. As you don’t want to unnecessarily waive your marital property, spousal support, or other rights, seeking legal advice is a good idea, especially if you have many assets.
Serving Divorce Papers
Once you’ve filed your divorce papers at court, you have to serve them on your spouse. Generally, this means another adult must physically give the papers to your spouse. You can use professional servers or save money by having a friend serve the papers for you. If domestic violence is involved, the police in some counties will serve the papers, without charging the usual fee.
Answering a Divorce Petition
Maybe your spouse just served you with dissolution papers. You still have the opportunity to tell the court what you do and don’t want in the divorce. Take care to answer within the deadline set by state law. In responding, you can fill out the court forms yourself, at a legal clinic, or with the help of an experienced divorce lawyer. If there are disagreements about what to do with children or property, considering hiring an attorney.
Mediation and Settling a Divorce Case
Many divorces settle with an agreement both parties can live with. Many states require mediation to help reach a property settlement and a parenting plan everyone can follow. Even without a formal program, you and your spouse can use a “collaborative” divorce process from the beginning or can use an “alternative dispute resolution” specialist to help you settle your divorce, read more by clicking the links below.
Trial and Appeals
If your case goes to trial, you’ll need to present evidence, possibly including testimony from witnesses, so the judge can decide a property settlement for you. It will be easier if you’re represented by an attorney at trial. It’s also possible you want to appeal or modify a divorce judgment. This section provides articles on these topics as well.
Divorce doesn’t happen overnight. In most states, there is a series of steps you must take to dissolve your marriage. Read on to learn what to expect during the divorce process.
Every marriage has its ups and downs. If you and your spouse feel like you need a break from each other, but reconciliation is still a possibility, you can choose to live apart during a trial separation. Some couples will attend therapy during the trial separation to try and resolve their marital problems. Court’s don’t get involved with trial separations, so typically both spouses have to be on board with the decision to separate. Generally speaking, during a short trial separation, your state’s marital property laws still apply meaning anything you or your spouse acquire during this trial period will still be considered marital property and belong to both spouses. If the trial separation is going to last for more than a month, couples may want to put the terms of the separation into an informal agreement, so there’s no confusion and the expectations are spelled out clearly. For example, you can state the amount of time you plan to be apart, how you’ll manage parental responsibilities, who will pay the bills, when each parent will see the children (if any), whether you’ll continue sharing a bank account, how you’ll manage the family home, and anything else that’s important to you.
In some states, couples who can’t reconcile, but don’t want to file for divorce can ask the court for a legal separation. Legal separation may be appropriate in marriages where the couple’s religion prohibits divorce, where a couple needs to stay married for health care or tax purposes, or, in some cases, to share Social Security benefits. Not all states offer legal separation, but in the states that do, the process is very similar to traditional divorce, except that in the end, you’re still legally married. Both spouses must agree to file for a separation. If either spouse asks for a divorce, the court will proceed with a traditional divorce. If your state doesn’t offer legal separation, you may still be able to permanently separate by entering into a formal, written settlement agreement with your spouse that covers how you will handle any and all marital issues that apply to your case, such as:
• child custody and support,
• alimony (spousal support), and
• property and debt division.
If you’re unsure whether your state offers legal separation or whether it’s the right approach for you case, you should speak with an experienced family law attorney near you.
Filing a Divorce Petition
If you’ve decided that divorce is the right choice for you, you’ll need to initiate the legal process to get your divorce case started. Before you file any paperwork, check with the court to determine if your state requires you and your spouse to live separately before filing. If you file too early, you risk the court rejecting your case, and you’ll have to start over. The spouse requesting the divorce must a file divorce petition (sometimes called a complaint for dissolution of marriage) with the local court in order to start the divorce case. Typically, the petition will include the following:
• each spouse’s personal information (name, address, social security number)
• whether the couple has minor children, and if so, each child’s information
• the legal grounds for the divorce, and
• the filing spouse’s requests for property division, child custody, child support, and/or alimony.
Once you have the petition completed, you’ll need to bring it to your local court, along with any other required documents, and pay the filing fee. If you can’t afford to pay, you can complete a fee waiver request. If the judge approves your request, you won’t have to pay the court’s filing fee.
Utah Grounds for Divorce
There are two types of divorce: no-fault and fault-based. No-fault divorce means that the filing spouse asks for a divorce without alleging that the other spouse did something wrong. Instead, the spouse tells the court that the marriage is irretrievably broken, or that the couple suffers irreconcilable differences. In some states, you can request a divorce based on separation for a certain period of time. While this is no the classic “no-fault” ground, it is similar in that it doesn’t require either spouse to allege the other is at fault for the divorce. All states offer a no-fault divorce (or divorce based on separation). No-fault divorces are less expensive and time-consuming than fault divorces. Some states still allow spouses to file for fault-based divorce. In a fault divorce, a spouse will alleges in the divorce complaint that the other spouse’s misconduct caused the breakup. Some spouses ask for a fault divorce to feel vindicated for the other spouse’s wrongdoing. Others ask for a fault divorce to try and influence the judge’s property and spousal support decisions. In the states that permit fault divorce, the most common grounds are adultery, alcohol or drug abuse, abandonment, and physical abuse. Fault divorces require the filing spouse to prove the allegations in court, so the process tends to take much longer and cost more than a no-fault divorce. If you’re considering a fault divorce, you should speak to a local attorney to determine if you qualify and whether the added expense is worth it in your case.
Serving the Divorce Petition
Regardless of the type of divorce you choose, after you file your documents with the court, you must serve (deliver) a copy of the paperwork to your spouse. You can ask your local sheriff’s department to give the documents to your spouse, or you can hire a private process server to do it for a fee. If you can’t find your spouse, you can ask the judge for permission to publish the divorce information in a local newspaper. Service is important because it ensures that both spouses have time to review and respond to the complaint before the court acts. Nearly every state has a “waiting period” that the court must allow to pass before the judge can finalize the divorce which is the state’s way of allowing the couple time to either reconcile or negotiate the terms of the divorce. The filing spouse must complete and provide proof of service to the court before the waiting period begins to run.
After you deliver the paperwork to your spouse, the law generally allows the responding spouse 21-28 days to answer. If your spouse fails to respond by the deadline, you can ask the court to issue a default judgment in your favor. A default divorce means that the court will award you everything you asked for in your complaint. If there are minor children involved, the judge will ensure that your requests in the complaint are in the children’s best interests before issuing an order. Once the judge signs the final documents and issues a divorce decree, your marriage is over.
Response or filing an Answer
If your spouse responds to the complaint, the court must proceed with the traditional divorce process. The responding spouse (respondent) can submit an “answer” to the complaint, which agrees or disagrees with the filing spouse’s (petitioner’s) allegations, or the respondent can file a counter-complaint, alleging new facts for the judge to consider. Like with the original divorce complaint, the respondent must serve a copy of the answer to the petitioner and then provide proof of service to the court.
A Temporary Hearing
Even in cases where divorcing spouses agree on everything in their case, the process can still take time. Depending on where you live, some states require couples to live separately for up to a year before the court can finalize a divorce. Other states have waiting periods in excess of 6 months. Because of this, the court has the power to hold temporary hearings to resolve any essential issues while the divorce is pending.
Common reasons for temporary hearings may include:
• temporary custody and parenting time arrangements
• child support
• domestic violence restraining orders
• allocation of marital expenses during the divorce process
• restrictions on the sale or use of joint assets, like bank accounts and marital homes, and
• spousal support.
Getting A Divorce Settlement Agreement
If you and your spouse agree on all your divorce-related issues, you should put your terms in a settlement agreement. A divorce settlement agreement is a legally binding contract that outlines how the couple resolved divorce-related issues. The couple will submit the signed settlement agreement to the judge and if it meets the state’s requirements for fairness to both spouses, the judge will sign it and incorporate it into the final divorce judgement.
A settlement agreement allows the couple to maintain control over the most important aspects of their divorce, including:
• child custody and visitation
• child support
• spousal support
• property division and allocation of debts, and
• any other important issues.
Settlement or Trial
Contrary to what you may see in mainstream media, most couples can work through their issues and agree on the divorce terms without a drawn-out trial. Some couples agree on everything right away and hire attorneys just to memorialize the agreement for them to present to the judge. However, if you need a little help communicating and working through unresolved issues with your spouse, you can consider divorce mediation. Mediation is a voluntary (in most cases) process where the couple meets with a neutral third-party, who will facilitate the negotiations between the couple. If the couple agrees on their issues, the mediator will draft the settlement agreement for both spouses to sign. Mediation is also popular because if there are unresolved issues after the session, the couple can ask the court to decide those limited issues, so mediation can be a valuable service even if the couples doesn’t resolve every issue their case. Mediators don’t have the power to make binding decisions, so divorcing couples often feel more powerful after negotiating their settlement together. Settling your divorce may not be easy, but if you go into negotiations understanding that you and your spouse will both need to sacrifice a little to meet in the middle, you will spend significantly less time and money on your divorce than if you go to trial. For some couples, negotiation is impossible, and a divorce trial is necessary. A trial means that there are unresolved issues between the spouses. Typically, the spouses and their lawyers will attend multiple court hearings to present witnesses, evidence, and testimony to the judge, and the judge will decide how to handle the case.
If there’s a custody dispute, a court may require the family to complete a custody evaluation. A custody evaluator will conduct an investigation by interviewing the parents, children, other relatives, teachers, caregivers, and/or therapists in order to prepare a recommendation on how much time the child should live with each parent. This process is expensive, invasive, and can take several months to a year to complete. A divorce trial can cost many thousands of dollars, and you may be unhappy with the end result, so it’s important to think long and hard before you walk away from your settlement negotiations with your spouse.
Utah Divorce Lawyer
When you need legal help with a legal separation or divorce in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506