How to File a Divorce Petition in USA

The article ‘How to File a Divorce Petition in USA’ written by Pranava Pishati reflects on the grounds for divorce and how to file a divorce petition.

I. Introduction

Though Marriage is an acknowledgement of cultured social structure in which two capable individuals promise themselves to norms and values and vow to one another to live together eternally, the individual incompatibilities and attitudinal differences may arise and lead to the need for divorce from marriage by either both spouses or one of the spouses.

Despite the pledges and vows made during marriage ceremonies, both spouses may take disagreeable views to the marriage being dissolved. Hence there is a necessity to have a divorce. A divorce is a court order that ends a marriage. At the end of the 1960s, considerable modifications were made to divorce legislation in the United States, and the divorce rate nearly doubled in all states. United States divorce laws were significantly amended, liberalized, and streamlined by the end of the 1960s[1].

There are three dimensions along which divorce laws have changed: the advent of unilateral divorce; no-fault divorce; and effect on financial agreements, property partition, child custody, alimony, and child support transfers happened.

II. Divorce At-Fault and no-fault Divorce

1. Divorce at Fault

When one spouse applies for divorce on “fault” grounds, he or she claims that the other spouse is at fault in the marriage. Although there are various fault grounds, seven of them are well-known.

The following are the “fault” grounds for divorce[2]:

• Cruel and Abusive Treatment: When the other party intentionally causes bodily or mental harm to the other.
• Adultery: occurs when either party has intercourse with someone else. There is a clear necessity to prove that the spouse had sex with somebody else. It can be tough to prove at times.
• Impotency: When either of the couples is unable to have intercourse.
• Desertion: when either party has been absent for at least a year or does not intend to return.
• Gross and verified intoxication habits: that either party has a history of using a lot of drugs or alcohol.
• refusal or neglect to provide adequate support: if either party refuses to provide adequate support to the homemaker (the one who is currently not earning) enough money to live, they can file a petition to end the marriage.
• Sentence of Confinement in a Penal Institution: if either party has been condemned to five years in jail or more. This foundation usually depends on the length of the sentence, not how much time he spends in prison.

These legal reasons for divorce differ from state to state; nevertheless, there are also more commonly accepted grounds for filing for an at-fault divorce, such as bigamy. Incapacity of the mind at the moment of marriage, Marriage of close relatives, in order to obtain the marriage, either force or deception in obtaining the marriage, mentally ill, culture, religion, disease.

2. Filing for No-Fault Divorce

In 1970, no-fault divorce became law. California was the first state in the United States to establish a no-fault divorce statute. A no-fault divorce is one in which the dissolution of a marriage does not require either party to demonstrate misconduct. Even when no one is at fault, one may still desire a divorce.

No-fault divorce laws allow a family court to award a divorce in response to a petition by any party of the marriage without needing the petitioner to produce evidence that the defendant has breached the marital contract. No-fault divorces are rather prevalent, and they are usually the quickest and simplest type of divorce proceedings. Because there is no burden of proof, the trials are usually shorter and less expensive than their fault divorce.

Every state has some form of no-fault divorce. Prior to the availability of no-fault divorce, spouses seeking divorce would frequently establish bogus reasons for divorce. One motivation for the no-fault movement was to remove the incentive to lie. However, you must still file a no-fault divorce on some legal grounds. The grounds in no-fault lawsuits are usually referred to by some of the following terms:

1. Irreconcilable disagreements
2. Incompatibility
3. Irretrievable breakdown

Several states in the United States allow spouses to divorce if they are no longer willing to live with one another. However, different governments have different terms for a failed marriage. The legal word for the breakdown is “irreconcilable differences” or “incompatible of temperament[3].“ This collapse occurs through the fault of the partners, with no blame placed on one another, and is frequently used as grounds for divorce.

Whatever terminology is chosen, all states basically let partners divorce if the marriage fails and the pair acknowledges that the marriage will not work. To obtain a divorce on the grounds that the marriage is irrevocably destroyed, the couple must draft and sign an affidavit claiming the marriage is irreparably shattered. A written agreement that the marriage is irreparably shattered is an alternative to a sworn statement (irretrievable).

III. How to file a Divorce

1. Divorce At-fault

1. A divorce starts with a divorce petition.

First, one spouse (the petitioner) writes the petition and sends it to the other spouse. The petition is then filed in the region where one of the spouses resides in a state court. The petition (or divorce papers) must be served to the opposing spouse.

It is up to the response to accept or reject it. If the respondent refuses to sign, the petitioners can hire a professional process server to personally deliver the papers. In general, if the respondent fails to file a response within 30 days, the petitioner may seek that the court declares a default.

The respondent may also utilise the response to express disagreement with the material offered in the petition. Both couples must submit information about their assets, obligations, income, and expenses. There is only a little extra paperwork to file if the divorce is uncontested and the couples can agree on the conditions of the divorce. The divorce is final once the verdict is entered by the court.

1.1 In case of cruelty

They can request a hearing 21 days after the sheriff or constable issues the Domestic Relations Summons and the Complaint about Divorce on your spouse. They can obtain a divorce even if their spouse fails to appear at the hearing. The court provides a Judgment of Divorce Nisi after the judge considers in their case.

The divorce becomes final 90 days after the Divorce Nisi Judgment is issued[4]. (The divorce nisi is the period of time that elapses between when a court grants your divorce and when it becomes final. It allows both parties to change their views and ensure that the other party did not mislead about their property before the divorce is finalized. after this period, the divorce will get finalized automatically.)

2. No-Fault Divorce

In case of irretrievable breakdown, both spouses file together: they petition for divorce jointly and agree on all of the divorce decisions that must be made, including child custody, support, money, and property in the petition.

• it begins by having them write and sign a statement declaring that the marriage is over. This is known as an “Affidavit of Irretrievable Breakdown of the Marriage.”
• The next draft a separation agreement and have it notarized in front of a Notary Public.
• They submit a “Joint Petition for Divorce,” a “Affidavit of Irretrievable Breakdown of the Marriage,” and a notarized separation agreement in Probate and Family Court.
• When they file the paperwork, they might request a hearing date.
• Both spouses must appear in court for the hearing. During the hearing, the judge ensures that everyone agrees and that everything is fair.

3. The unilateral divorce

Only one spouse files: If both partners cannot agree on everything, the one who wishes to divorce may file this complaint on their own. It makes no difference if the respondent spouse wants to divorce. If the petitioner desires one, he or she may file this complaint.

They must serve the Domestic Relations Summons once they have filed. They must wait six months after filing the paperwork before requesting a trial date. They can, however, file motions for temporary orders together with their complaint and have them heard within ten (10) days[5].

They can obtain a divorce even if the respondent spouse fails to appear at the hearing. If they are unable to reach an agreement, the judge will use his discretion to decide on issues including support, custody, parenting time, and visitation, as well as what happens to your property.

---

Reference

[1] Stefania Marcassa. Divorce Laws and Divorce Rate in the U.S.. B.E. Journal of Macroeconomics, De Gruyter, 2013, 13 (1), pp.10.1515/bejm-2012-0149. ffhal-00865640f

[2] (Reederlawfirm.com, 2021) Available Here accessed 7 August 2021

[3] ‘Do I Need To Have A Reason To Get A Divorce? – Masslegalhelp’ (Masslegalhelp.org, 2021) Available Here accessed 7 August 2021

[4] Dixon, Ruth B., and Lenore J. Weitzman. “When Husbands File for Divorce.” <i>Journal of Marriage and Family</i> 44, no. 1 (1982): 103-15. Accessed August 7, 2021. doi:10.2307/351266.

[5] Stevenson B, and Wolfers J, ‘MARRIAGE AND DIVORCE: CHANGES AND THEIR DRIVING FORCES’ (nber.org, 2007) Available Here accessed 7 August 2021

---

1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Legal Bites Academy – Ultimate Test Prep Destination