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You may have heard that divorce is a process. This isn’t a metaphor for the stressful and emotional tug of war that you have to deal with during your divorce. It really is a process that has certain requirements that you must follow for the divorce to be legally complete. Depending on the state that you live in, you may have different requirements or adjustments to the timeline.
No matter what, be prepared to step into a world of the unknown. “The hardest thing for me was not knowing anything about the legal process — I had no divorced family members or friends,” mother of two Alicia Brodt told Mom.com.
There is a lot of paperwork involved, and you don’t want to make a mistake and risk losing something important like custody rights because you didn’t file the correct response to something.
Here are five steps to take before filing and after.
Initial filing and cooling off period
1. File your initial petition
The initial petition for divorce notifies the court that you intend to dissolve your marriage. This is the first step for your divorce and starts the “separation” period. In your petition, you will state the names of you and your husband, the date of marriage, and your desire to divorce often citing “irreconcilable differences.” If your ex filed the initial petition, you will likely file a petition response to state your intention for divorce as well.
You have to be a resident in your state to file for divorce. Usually, there is a time requirement of being a resident for at least three to six months to file for divorce in the state. This prevents people from going to a state where there is a favorable system to get the most from their ex.
2. Meet the required cooling-off period requirements
Most states require parties to think about the decision to divorce during a cooling-off period. My divorce in California had a six-month cooling-off period where we filed the petition but couldn’t legally dissolve the marriage until six months from the date of the petition.
In some states the rules are more stringent. “North Carolina requires spouses to live separate and apart for an entire year before either party can file for divorce," divorce attorney Amy R. Howard told Mom.com. "Living under the same roof in separate bedrooms, or on separate floors, does not qualify as living separate and apart.”
How to file for divorce
3. Request temporary orders
The cooling-off period often has less to do with cooling off than it does with making sure parties want to divorce. During this time, you will likely file for temporary orders that state temporary financial awards such as spousal and child support and custody orders. These are temporary and may or may not be the same as the final orders. This is a starting point, as everyone is getting a handle on life apart, potentially with new housing, new jobs, and new schools for kids.
4. Negotiate or prepare for trial
Just because you are in the cooling-off period doesn’t mean you don’t work on getting things ready for your divorce. This is the time to try to negotiate all final terms of the divorce so everything is settled when your waiting period is over. If things are amicable, chances are you can work things out together or get a mediator to help with the final negotiations. If things aren’t amicable, chances are you will be filing paperwork for discovery.
Discovery may involve looking at financial statements to split assets. It could involve telephone and bank records to see if there was infidelity during the marriage. This is a strong negotiation point in some states guaranteeing or disqualifying a person from spousal support. Note that not every state has divorce hearings. Some states handle all divorce filings with paperwork.
Things often overlooked in divorce agreements
5. Think of the little things
There are a lot of things that even amicable divorces forget to address during the divorce. Howard tells us that one of the most commonly overlooked items is “which parent gets to claim the child” on tax returns for the deductions and head of household status. If you share 50-50 custody, one parent is given a legal right to claim an extra day for tax purposes. Otherwise, this can be a nightmare later on. Little things like health insurance are often forgotten and leave someone at risk of losing insurance.
Don’t forget to check beneficiaries on retirement plans and life insurance policies. Unless there is a custody reason to keep an ex as the beneficiary, it is better to establish a trust for the kids and have the trust become the beneficiary of these types of accounts.
To hear experienced insight from divorce attorney Jonna Spilbor on the steps to take before filing for divorce, check out these episodes of Divorce Tips:
