Getting divorced is obviously a huge decision, but once you’ve opted to take that route, there are certain procedures you should follow to get the process going. Every state requires that you file a formal, written divorce “petition” or “complaint” (request). And once you file that petition, you have to make sure your spouse receives it, typically by personal delivery. But be very careful—if you file or serve the petition incorrectly, the court could reject your request, and force you to start from scratch.
What Information Does a Divorce Petition Contain?
In preparing a divorce petition there are certain facts that you have to make the court aware of. Obviously, the court needs to know the names of the individuals involved. The person who initiates the divorce is called the “plaintiff” or “petitioner,” and the other spouse is the “defendant” or “respondent.”
Most—if not all—states also require that you reside in the state for a certain period of time before being eligible to file the petition. In New Jersey, for example, one of the spouses must have lived in the state for at least 12 months before filing the divorce complaint. Yet in Nevada, the required residency period is only six weeks before filing. No matter how long the necessary residency time frame is, the petition must notify the court of where you live and how long you’ve been there.
You’ll also have to let the court know where your spouse resides. For the court to require your spouse to do certain things—such as pay spousal support (alimony)—it needs to have what’s known as “personal jurisdiction” over him or her. This isn’t an issue if your spouse lives in the state. However, if he or she resides out-of-state, it could be a problem, because then you’ll have to prove that your spouse has “sufficient minimum contacts” with your state in order to be subject to the local court's authority. You can learn more about personal jurisdiction in this informative article.
You'll also need to include:
- the date and place you were married
- the names and ages of your children
- the grounds (reason) for the divorce request, and
- the “relief” you’re seeking (basically, how you want to resolve custody, spousal and/or child support, property distribution, and possibly the right to resume a maiden name).
For more information, see What Goes in a Divorce Petition?
Only state courts handle divorce, so once you complete your petition, you’ll send it to the court clerk’s office of the Superior Court (or Circuit Court) of the county where you live. Once the court receives it, the clerk will file it and assign your case an identification number (“docket number”). Courts charge divorce filing fees, so you’ll need to contact the clerk to find out how much the filing will cost.
Methods of Serving the Petition on Your Spouse
After you file the divorce complaint with the court clerk, you’ll get a copy with the docket number on it. When getting ready to serve the divorce complaint on your spouse, you’re also going to have to prepare a second document, known as a “summons.” This paper lets the other spouse know that the divorce complaint was filed, and will apprise him or her of what needs to be done to respond to the complaint—such as where to send a response, how much it will cost to file the response, and the time period in which to do this. If your spouse doesn’t respond in the allotted time, it’s considered a “default,” and your case can move forward without your spouse’s participation.
If your spouse is being cooperative, you could simply send your spouse the summons and complaint, together with “an acknowledgment of service” (sometimes called an “answer and waiver of service” or a similar name). Your spouse can sign this document to represent that he or she received the divorce papers. Then your spouse will need to send this back to you for filing with the court.
If getting an acknowledgment of service isn’t possible, you’ll have to make sure the petition and summons are formally served on your spouse by someone authorized to hand-deliver them (called “personal service”). Often, this will be a sheriff’s officer. But most states now allow service by professional process servers, or sometimes even any adult who’s not involved in the divorce.
If you have no idea where your spouse is—after making a diligent effort to find out—the courts will often allow what’s known as “constructive service” or “service by publication,” where you’ll notify your spouse of the divorce by placing a notice in a newspaper that covers the town or county where your spouse last resided (to the best of your knowledge).
To learn more, see What if We Can't Find My Spouse to Serve Divorce Papers?
Because it’s crucial that you file and serve divorce papers properly, your best bet is to consult with a knowledgeable divorce attorney first.