How to File for Divorce in 8 Easy Steps

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How to file for divorce in 8 easy steps

Divorce, whether or amicable or contentious, is hard work. Nick Gottwald, a Utah divorce lawyer for Nelson, Taylor and Associates and a Top Pro on Thumbtack, breaks down the basics of how to get a divorce. Learn what steps to take before doing your own divorce. Learn about the variables involved such as custody of children and spousal support. Whether you’re walking through it on your own or considering seeking help from a lawyer, these eight key steps can help guide you.

STEP 1: How to file for divorce

Understand “contested” vs. “uncontested.”

An uncontested divorce means you and your spouse are in agreement about everything — the house, the cars, the kids, the retirement accounts. You agree on how everything will be split. In this situation, once the state’s mandatory waiting period (if there is one) is over, the divorce decree is final. A contested divorce means you cannot agree on the division of most things or one person does not want to end the marriage, and there is a need for legal intervention to make the split.

With an uncontested divorce, you may end up filing together. With a contested divorce, one person may file for the split, and the other party may be served with divorce papers.

In a contested divorce, for immediate concerns around the issues of custody, parent-time, child support, alimony and who gets to live in the marital residence during the divorce, the following pleadings can be filed and served on the other party:

  • Verified Complaint for Divorce
  • Motion for Temporary Order
  • Affidavit in Support of Motion for Temporary Order
  • Financial Declaration
  • 21-Day Summons

STEP 2: How to file for divorce

Know when to file

Each state has its own residency requirements when filing for a divorce. In addition, the county you live in will have its own residency requirements. If you’ve recently moved, confirm that you’re eligible to file in your county and state. For example, in Utah, you must have three months of residency; in California, it’s six months; Connecticut requires 12 months, and in Alaska, there’s no residency requirement at all. Many states also have a mandatory waiting period from the day the divorce is filed to when it can become final. Some states, such as Utah, will waive the waiting period if it is an uncontested divorce and no kids are involved. Look into your state’s time frame before you begin the process.

STEP 3: How to file for divorce

Know where to file

Submit the required paperwork to the county clerk at your local courthouse. Each state has its own paperwork. Here are examples of the paperwork required in California and Utah. Be as organized as possible when gathering your paperwork and keep copies of everything you file.

STEP 4: How to file for divorce

Determine the fees for filing

In Utah the fee for filing an uncontested divorce is $318 if you file yourself. Every state has online and in-courthouse access for people to do their own divorce, but the paperwork is one size fits all. Hiring a lawyer means the divorce is customized for your needs, even when your split is uncontested. Gottwald’s total fees for a truly uncontested divorce are $800, including Utah’s $318 filing fee. Costs for a contested divorce rise significantly and any time you have to go into litigation. Different firms charge different prices, so investigate what will best serve your needs. Attorney’s hourly fees can range anywhere from $150 to $500 an hour.

STEP 5: How to file for divorce

Discuss custody of children

If you’re divorcing and have kids, you need to agree about physical and legal custody. If you don’t agree, becomes a contested divorce and the courts will become involved.

Through the court system, physical custody is based on how many overnights each parent gets in a two-week period. A divorce decree involving children requires documentation of this agreement. Gottwald says many divorces go to trial because of an inability to agree on the children’s custody. Types of physical custody include:

  • Minimum Parent-Time, where the Sole Custodian gets 12 nights and the Non-Custodian gets two nights, typically every other Friday and Saturday evenings.

  • Expanded Parent-Time, where the Primary Custodian gets nine nights and the Non-Custodian gets 5 nights, typically every Thursday evening and every other Friday, Saturday, Sunday evenings.

  • 50/50 Custody, where the Joint Custodians each get seven overnights, typically one week-on/week-off. Sometimes one gets every Monday and Tuesday, the other gets every Wednesday and Thursday, and they alternate Friday, Saturday and Sunday evenings.

Legal custody in Utah addresses how significant medical, religious and educational decisions are made regarding the kids. The court is predisposed toward joint legal custody. This position requires parents to talk to each other before making important decisions about the kids. One common area where this comes up is in relation to changing the kids’ school. Although when issues related to health and education remain unresolved, it could ultimately mean that the parents have to seek mediation in court. Each state is different, so read up on the fine print when it comes to your family!

Child support is based on two things: 1) Each party’s gross monthly income and 2) the number of yearly overnights each parent gets. Child support is not negotiable, meaning it’s not something you can use as a bargaining chip. It is meant for the support of the kids, and the courts take it very seriously. Access your state’s resources to learn what this might look like. For example, Utah has an online Child Support Calculator to determine what monthly costs should be.

STEP 6: How to file for divorce

Agree on alimony

Determine alimony or spousal support using the recipient’s financial need as the first ceiling and the payer’s financial ability as the second ceiling. You may agree on a set payment for a determined amount of time to ensure that you have an uncontested divorce.

If you can’t agree and the court becomes involved, need and ability are determined by calculating expenses (health insurance, rent, etc.) less net income. This can be a contentious process involving litigation, and financial verification is crucial. Tax returns, bank statements, debts, expenses will all be required if alimony is requested and the other party is not too excited to pay.

STEP 7: How to file for divorce

Discuss how to split assets

The general rule of thumb in courts is that assets acquired and debts incurred while together are split 50/50, although this may vary depending on the relative wealth and financial outlook of each person. Retirement earned during the marriage is generally split, although the process of awarding a portion of the account to the other person can be massively time-consuming and is done directly with the financial institution after having received the decree of divorce. Vehicles are generally settled so that each person walks away with same amount of value.

STEP 8: How to file for divorce

Consider mediation

Mediation is dispute resolution approach that allows you to avoid a trial. A professional mediator, attorney-mediator, or former commissioner or judge acts as an unbiased third party whose focus is helping both parties settle on an agreement. Low-income families may have access to sliding scale services through the court. For others, costs can range from $100 to $300/hour. Mediation may seem like a costly endeavor, but if it prevents a trial, it is well worth the expense.

If you’re filing an uncontested divorce, investing in a lawyer will smooth the process along, ensure that everything is properly filed, and protect you and your family throughout the process. If you have a contested divorce, a lawyer can help ensure that you get appropriate custody of your children and you receive equitable treatment financially after the divorce. For example, a divorce decree may stipulate that you receive half of your spouse’s retirement, however, negotiating that with the financial institution can take months of paperwork.

Whatever path you choose, keep calm and organized throughout the process.

Disclaimer: This information is not intended as legal advice. These are all basic principles, each case is unique and the legal options and strategies depend on the various unique circumstances. Seek legal advice before acting on information in this document.

About the pro - Give me a call, 538-0066, and let's talk about your case. I make communicating with my clients a priority. Attorneys are notorious for not answering their phone and not returning calls, but it is my strict practice to take calls if I am in my office and to return calls within 24 hours. I really enjoy helping people get through difficult times.

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