Obtaining a divorce can be expensive, time consuming, and emotionally draining. If your divorce is expected to be mutually agreeable, civil, and uncontested, it might be advantageous to go through the divorce process without an attorney (pro se). Doing so can save you money and make the process less adversarial. Follow these guidelines if you decide getting a divorce without a lawyer is right for you.
Steps
Deciding if a Pro Se Divorce is Right for You
- Discuss the potential divorce with your spouse. Make sure you and your spouse have a discussion about how both of you see the divorce going. If you and your spouse both think the divorce can be completed amicably, consider getting a divorce without a lawyer. However, if you and your spouse are having trouble agreeing on the terms of your divorce, you will need the assistance of an attorney in order to protect your best interests. Have this discussion at the beginning of the divorce process so that you can make the best decision possible.
- Assess whether you are a good candidate for a pro se divorce. Filing for divorce on your own should be considered only if:
- Both spouses are in agreement about the divorce and the divorce will be uncontested;
- Your spouse has not retained an attorney;
- There are not many marital assets needing to be distributed;
- Custody of children is agreed upon;
- Alimony is unnecessary;
- Neither spouse is in the military;
- Neither spouse has substantial investments;
- There are no pension or retirement plans to distribute; and
- There is no history of domestic violence in the marriage.[1]
- Decide what you need to file for. Before deciding to go through with a divorce, think about other options including an annulment or a legal separation.
- An annulment is a legal proceeding that cancels the marriage and results in the marriage being completely erased (as if it never happened).[2]
- A legal separation is a court ordered split between you and your spouse. While you and your spouse will still be legally married, you will likely be living apart.[3] The court order will mandate the rights and duties of you and your spouse while the legal separation is in effect.[4]
- A divorce is the ending of a valid marriage.[5] The rest of this article will focus on this proceeding.
Thinking About the Big Issues
- Consider how assets are going to be distributed. If you have chosen to file for a divorce on your own, you and your spouse are going to have to agree on how your marital assets are going to be distributed. Depending on what state you live in, there are going to be different rules on how the property will be split. You and your spouse should make sure to understand what type of state you are in so you can understand how property will be split if you do not agree and a judge has to step in.
- Some states are community property states (e.g., Texas and California), which means that the property acquired jointly during the marriage are considered to be owned equally by both spouses.[6] Upon divorce, this property will be split as evenly as possible unless you and your spouse agree otherwise.
- Most states follow a separate property rule, which means whoever bought the piece of property or earned the property will own the property.[7] If both you and your spouse own something jointly, it will be split evenly upon divorce, unless you and your spouse agree otherwise.
- Remember, these rules are only defaults and you and your spouse can get around them by agreeing ahead of time on how property will be distributed.[8]
- Think about your children. When you and your spouse get a divorce, and if you have children, those children will need to be cared for. Before filing for divorce, sit down with your spouse and decide who will get child custody and who, if anyone, will pay child support. If you cannot agree on these issues ahead of time, consider hiring an attorney as you will want to protect the interests of your children in court.
- Assess the need for alimony. Alimony is a periodic support payment to a spouse. Discuss the need for any alimony payments with your spouse and agree on an amount, if any, before filing for divorce. If you cannot agree on alimony, consider hiring an attorney so he or she can help you protect your financial assets or get the spousal support you deserve.
Preparing for Divorce Proceedings
- Decide where you need to file for divorce. You will need to file for divorce in the state and county where you meet certain residency requirements. Often, in order to file for divorce, you will need to have been a resident of the state and county where you plan on filing for between six months to one year.[9] Only Alaska, South Dakota, and Washington have no extended residency requirements, which means you can file for a divorce there so long as you are a resident at the time of filing.[10]
- Gather all the required court forms. To start the divorce process, you will first have to obtain all of the required divorce forms.[11] Check with your state's website, or go to your court's office of the clerk, and download or ask for all the documents you will need to complete a divorce. The documents most commonly needed include:
- A summons. This document tells someone to notify your spouse that you are starting the divorce process.[12] The summons will also tell your spouse to file certain documents to ensure he or she is kept in the loop and is able to take part in all the proceedings.[13]
- A divorce petition. You need to fill out a divorce petition, which is a document that tells the court and your spouse what you want.[14] You can ask for things such as an end to your marriage, alimony, child custody, child support, and a division of property.[15]
- A divorce decree, which will be the final document the judge will sign in order to finalize your divorce. This document will include all of the requirements of your divorce, including how property will be distributed and how children will be cared for.
- Draft your divorce petition. The most important document at this stage of the divorce is the divorce petition. You will draft this document then file it with the clerk of courts. A divorce petition will usually include the following information:
- A declaration that you meet the residency requirements;
- The dates of your marriage;
- Your grounds for divorce;
- Children of the marriage;
- Declarations about property and debts; and
- A request for a divorce.[16]
- Take the divorce petition to the court clerk's office. Once you have filled out the divorce petition, you will take it to the clerk of courts to have it looked over and signed.[17] Once the clerk of courts has signed the document, he or she will return the original to you so it can be served on your spouse.[18]
- Provide notice and service to the other party. You will take the original document and serve (give) it to your spouse.[19] You will usually ask a marshal or some other professional to do this task for you.[20] Once your spouse has been served and given notice, he or she will return the document to you.[21]
- File all the divorce petition at the court clerk's office. You will finally take all of the completed documents and service papers and you will file them with the clerk of courts.[22] After completing this process, some states will set a hearing date immediately and other states require a waiting period before a hearing date will be set.[23]
- Respond to a divorce filing (if your spouse filed for the divorce). If your spouse is the one who filed for divorce, you will be served with a copy of the divorce petition and you will have a chance to respond. In your response you will likely include the following:
- Whether you agree with the divorce petition and its contents;
- Whether you disagree with all or portions of the divorce petition and its contents;
- A discussion of your assets and debts; and
- A request for relief based on what you said in your response.[24]
Completing Pre-Trial Tasks
- Consider filing any necessary temporary orders. Soon after filing your complaint you should consider filing any necessary temporary orders.[25] Temporary orders will ask the court to rule on certain issues before your official divorce hearing.[26] Some of the common orders filed include those for child support, child custody, and/or temporary alimony.[27]
- Wait for your court hearing. While you are waiting for your court hearing, you should be in contact with your spouse trying to work out the details of your divorce.[28] The court may provide you with a period of discovery, where you can request documents and other information from your spouse.[29] If your state has a waiting period, you may use that time to fill out and deliver financial affidavits, attend required classes on parenting, and go through other case management proceedings.[30]
- Try to go through mediation. While you are waiting for your divorce hearing, or even before, you may want to consider going through mediation.[31] Mediation provides an alternative process to the formal court setting.[32] In mediation, you and your spouse will meet with a third party and negotiate agreements to any points of contention.[33] If all issues can be resolved in mediation, there will be no need to have or attend a court hearing.[34]
Going to Court
- Understand what to expect. Your divorce hearing is going to be a formal court proceeding and before you go you should understand what to expect. Consider the following before going to the hearing:
- Dress professionally and conservatively;
- Expect delays and arrive early because you will have to go through a security screening, much like an airport;
- Be prepared and bring copies of all the documents you have filed, filled out, or received and that are relevant to your divorce; and
- Answer all of the judge's questions completely and honestly.
- Go to your court hearing. At your hearing, If your divorce is uncontested, you and your spouse will simply ask the judge to sign off on your divorce decree, which you will bring to the hearing completed. If your divorce is contested, a judge will hear both parties' side of the story.[35] You and your spouse will each have an opportunity to provide evidence to the court on any issues you disagree on.[36]
- Obtain the court's judgment. At the end of the court hearing, the judge will consider what he or she has heard from you and your spouse and will then render a decision.[37] The court's judgement (which will be in the form of a divorce decree) will set forth the specifics of your divorce including what property goes to who, who gets child custody and/or child support payments, and what amount of alimony a party will receive. If your divorce was uncontested, the judge will likely sign off on the divorce decree you brought to the court hearing and that will be it. If your divorce was contested, the judge may write a divorce decree including requirements he or she feels best suits your and your spouse's situation.
Finalizing Your Divorce
- File your divorce decree. After your court hearing, the judge will provide you with a divorce decree that you must file with the clerk of courts in order to finalize your divorce.[38] File your decree and thank the clerk for all of their help.
- Follow your divorce guidelines and rulings. The divorce decree that you file will set out the parameters of your divorce. You are required to follow them as if they are the law. For example, if your divorce decree says your ex-wife or ex-husband has custody of the children, you must obey that decision. Failing to follow your divorce decree could lead to legal trouble.
- Consider appealing your divorce. After the court hearing and final decision, if you are not happy with how the divorce decree came out you may be able to appeal the decision. The purpose of an appeal is to give another court the opportunity to look at the trial court's decision in order to determine if there was any legal error.[39] An appeal is usually not the time to question factual determinations, such as a judge's decision about who the better parent would be.[40] If you are thinking about an appeal, you may want to consider finding a lawyer because an appeal involves complex legal standards and oral arguments.
Video
Tips
- Make and keep copies of all court documents and agreements.
- Obtain a lawyer if your spouse has done so.
- Consider only getting a divorce without a lawyer if the divorce is uncontested and relatively straightforward.
Warnings
- Property is split differently during a divorce depending on what state you are getting divorced in. Be sure to understand your state's laws regarding the division of property upon divorce.
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Sources and Citations
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