How to Take the First Step Towards a Divorce

by Teo Spengler

The first steps toward getting a divorce might be the hardest. It's not that the actions of filling in the petition and summons forms, filing them and legally serving them on your spouse are so difficult. But emotionally, in the doing of those initial steps, you are transformed from being a person in a marriage to being a person going through a divorce.

Moving Toward Divorce

When you've made up your mind that your marriage is over, you are ready to take the first steps toward a divorce. If you have children, have merged your finances with those of your spouse or own substantial assets, you should talk to an attorney before taking the next steps. Representing yourself in a divorce is possible but probably not advisable in any of these circumstances. Courts hold parties who represent themselves to the same standards as attorneys in matters like knowing court rules and procedures, so if you want to represent yourself, be ready to invest enough time to learn the ropes.

If you have no children and few marital assets, or you've pounded out an agreement with your spouse about how to divide things up, it's time to jump into the court process. Most courts have a self-help website that walks you through the forms to file and what to do with them.

Preparing Your Paperwork

It might be called a complaint, and it's often called a petition. Whatever name your jurisdiction puts at the top of the form, it is the opening salvo in a divorce. You can almost always find the form online at the court system website, as well as instructions about how to fill it in. Basically, this form lets the court know who is involved in the case.

Give your own name and identifying information and that of your spouse and each minor child. As you fill out the form, identify some of your assets and debts. Naturally, each state's forms are slightly different, so work line by line, and take your time. You might need to use different forms depending on whether or not you have children and whether or not you have an agreement with your spouse. The instructions can help you if you don't understand something. Many courts offer a family law facilitator to answer your questions about rules and procedures.

The other required document is called a summons. This document gives your spouse notice of the case and a deadline by which to answer.

Filing the Forms With the Court

The next of three initial steps toward divorce involves filing the forms with the court. Be sure to read the relevant instructions so that you know how many copies of each document to bring with you. Give the originals and copies to the court clerk so that she can assign you a case number and stamp it on the documents. She also file-stamps the copies and returns them to you – one for your files and one to serve on your spouse.

You'll pay a court filing fee for initiating a divorce case. If it's any comfort, your spouse will also have to pay the filing fee when responding to the petition.

Serving Your Spouse

Court rules require that you give your spouse formal notice of the lawsuit through the process of serving the opening documents. Service is a legal term. It means that you arrange to get copies to your spouse in one of several ways approved by the court. The most common type of service is to have a third party hand over the documents in person. You can easily find a process server who will accomplish this for a fee. Don't do it yourself; it won't count as service. Whoever serves your spouse must fill out a form advising the court how and when your spouse was served.

Once your spouse is served with the petition and summons, your divorce case is truly underway. Generally your spouse's response will be the next document filed.

About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Spengler splits her time between French Basque Country and California.