Even though the steps of divorce follow a similar sequence,
each state has different requirements at each stage, so you need to check
with your state divorce laws to find out how to proceed in your
case. You can read a detailed explanation about the general steps of
divorce in our article about
the divorce process,
or you can read the following questions and answers to get a better understanding
about your individual circumstances:
Can I get a divorce
if my husband refuses to sign the papers?
Kelly's Question: I am seeking a divorce on the
grounds of severe cruelty. My husband wants "another" chance and has
stated that he will just refuse to sign the divorce papers. Can I still get a
divorce with out him signing the papers?
Brette's Answer: Yes of course, that's why there is
a court system. If he doesn't agree, you go ahead and start a divorce
proceeding. He can explain to the judge why he doesn't agree.
What
kind of divorce should I get if I just want it to be over?
Ana's Question: We separated 2 months after we got
married, and are both now involved in different relationships. We don't
want anything from each other and just to have our marriage ended. What kind of
divorce should I get?
Brette's Answer: It sounds like you should just do
a simple uncontested divorce. One of you can do the paperwork on your own. Talk
to an attorney to get more information. »Return to top
Who
moves out when a divorce is filed?
Fae's Question: When someone is served divorce
papers, who has to leave the house?
Brette's Answer: The fact that a divorce case has
been started has nothing to do with occupancy of the home. Filing the papers
does not mean someone has to leave. You can both continue to live there, agree
who will move out, or you can ask the court to decide on a motion for exclusive
temporary residency of the home while the case is pending. »Return to top
How do I get support until the divorce is final?
Cheryl's Question: I just filed for divorce and we have the first court date coming up. How do I get support from him until our divorce is final. I can't imagine that the court would expect that one should have to go without financial support for the duration of the process.
Brette's Answer: You need to make a motion for temporary support. You can find out more information by reading the faqs on temporary support.
What should I do before getting a
divorce?
Marilyn's Question: My husband admitted
that he intends to divorce me after our children graduate from high
school. I am a homemaker, and now he wants me to find a job,
after telling me not to for all these years. I can't help
feeling like a sitting duck. What can I do now to protect myself?
Brette's Answer: I think you would be well advised
to meet with an attorney to gather information and get some advice. This does
not mean you should let him know you're doing so or that you should take any
other action at this point. However, talking to someone who can review your
situation and suggest what steps you should or should not take right now would
most likely not only help you feel more secure, but put you in a better
position. Good luck. »Return to top
Do I need an attorney to
get a divorce?
Millie's Question: Do I need an attorney for a
divorce? We have a house, cars, a child together.
Brette's Answer: It's a good idea to at least
consult with an attorney. If you and your spouse are in agreement, it is
possible to do the divorce yourself, however it is always important to consult
with an attorney to make sure you know your rights. You might also want to
consider divorce mediation, where you and your husband work with a mediator to
negotiate the terms of your divorce.
How long does it take to get
a divorce?
Vanessa's Question: How long does the divorce
process take, from beginning to end?
Brette's Answer: How long it will take for your
divorce to be final depends on a lot of factors - whether your husband contests
it, how backed up the courts are in your area, and what you ask for. If you have an
uncontested divorce it is a matter of months, but if you and your spouse do not
agree expect it to take more than a year, up to two years. »Return to top
Will an existing prenuptial agreement
speed up the divorce?
Renee's Question: My husband and I signed a prenup
before we got married. What effect will it have on the length of our
divorce?
Brette's Answer: If you have a prenup and no one is
contesting it, your divorce would be relatively simple, unless you do not agree
about what constitutes marital assets vs. separate assets.
Who pays for the cost of the
divorce?
Maxine's Question: Who pays for the divorce if the
wife goes to a lawyer first and gives him money?
Brette's Answer: It makes no difference who talks
to an attorney first and pays an attorney. The costs of the divorce are often
split, but this is definitely something that can be negotiated. Often the
moneyed spouse pays all or most of the cost. »Return to top
How do I proceed with a military divorce?
Erika's Question: Do you know where I
might find information about military divorces?
Do I have to go to
the hearing if I'm not contesting the divorce?
Maria's Question: My husband filed for divorce and
the date has been set. Nothing was contested, all property has been
divided, our daughters are grown, etc. Do I have to attend the final
hearing?
Brette's Answer: If you have signed documents
agreeing to everything already, the hearing is just a formality. However, you
should be aware that if you don't go, you waive your opportunity to be heard
should there be a problem with something. »Return to top
What if he doesn't show up
for the court hearing?
Helen's Question: I filed for divorce from my
alcoholic husband. The first hearing is scheduled in two weeks. Initially my
husband promised to sign the papers, but I am not sure
if he will even show up in court. What will happen if he does not?
Brette's Answer: Assuming he was legally served,
the case will proceed as uncontested. This means that by not showing up, he
takes himself out of the equation. He has no say or input on the case from that
point forward. The judge will
consider the requests you make and make all the decisions - alimony, property,
custody, child support and so on, without his point of view at all.
How
should I prepare for court if I'm filing Pro Se?
Melissa's Question: I received the marital
settlement agreement, had a lawyer review it, and everything seems to be in
order and what we agreed to. Since I am representing myself, is there anything
specific I need to do besides show up for the court date? Also, will I get
to see a copy of the settlement terms/papers on the court date?
Brette's Answer: Dress nicely, be on time, don't
chew gum, turn off your cell phone, don't bring food or drink, and try not to be
nervous. It is likely the judge will ask you a few questions. Just answer them
honestly. If you'd like, you can be sure the document the court has matches the
one you signed. Just ask if you can examine it.
Can the court appearance
postponed until I get a lawyer?
Karen's Question: I was just served with divorce
papers, and the court date is less than a week away. I have no money or
lawyer at this time. How can I get the court appearance postponed until I
have time to get a lawyer?
Brette's Answer: You can go to the court appearance
and tell the judge you are going to hire an attorney, but need some
more time. The appearance will be rescheduled. In some places you
can call and ask for a postponement over the phone, but it's
unlikely you can get it that way. » Return to top
Can I postpone the court hearing
because of my job?
Latifa's Question: I just started a new job, and
can't attend a court hearing for child support. Can I have it
postponed?
Brette's Answer: If you are unable to attend, you
call the court clerk and ask to have it rescheduled. You may be required to get
permission from the other side. Be aware that sometimes a court will not
reschedule a court hearing - you're expected to adjust your life around the
court's schedule and not vice versa.
Can I personally contact the Family
Court Judge?
Peg's Question: My so-called "easy"
divorce is taking over 2 yrs. It was supposed to be done last March. There are
no major complications, no custody issues, no debts, but lots of assets to
split. I think the lawyers are lining their pockets, and we are both scratching
our heads on why so long! We've never been before the Judge, and don't know what
our lawyers are saying in our behalf behind closed doors. Can I personally
contact our Family Court Judge to find out why it is taking so long?
Brette's Answer: The judge will not take your call.
You could call his or her law clerk though. It's unlikely he or she will be able
to tell you. The best course of action is to try to pin your lawyer down. Find
out exactly what's going on and when. Insist that the case be wrapped up. Go to
the next court appearance if you want. »Return to top
Can my divorce be moved to another county?
Harriet's Question: My divorce has been going on for the past three years,
and is still pending in the courts. Can I transfer all my records to another
county since I moved 150 miles away from the town where the divorce was
filed?
Brette's Answer: I think you're asking if your divorce can be moved to
a different locale, and the answer to that is no. It has to be heard
in the state and place where the grounds for divorce occurred. »Return to top
Is a social
security number required to get a divorce?
Emilie's Question: I want to divorce my
husband, whom I have not seen him for more than five years. The last
time I spoke to him he was in prison. Do I need his Social
Security Number to file a divorce? If so how do I get it?
Brette's Answer: In most states you do
need to provide this number. If you have tax returns, it should be
on there. If you are unable to obtain the number, it's likely the
court would waive the requirement. » Return
to top
Status of Divorce
Jackie's Question: My husband filed for divorce
more than six months ago, but I
have not heard anything yet. How long after getting an index number (which
identifies the case in the court system) are the papers
good for? Am I going to have to file for a divorce myself?
Brette's Answer: You should call the court clerk's office and ask them
the status of this case. Ask if they have your correct address. Normally you
should have heard something by now, but there is no way of knowing the status
unless you call and ask. » Return to top
What will happen at the
first meeting with our lawyers?
Holly's Question: I am going to my first meeting between my
husband's attorney and mine. What kind of questions is his attorney going to ask
me?
Brette's Answer: Since your attorney will be there, you can
relax. He or she will tell you if you should answer any questions or allow him
or her to speak for you. This is a settlement meeting - not a cross examination.
The goal is to try to reach an agreement.
Scheduling A
Settlement Conference
Lee Ann's Question: The judge spoke with my
attorney in a conference call, and ordered "the parties and
their counsel to meet for an unsupervised settlement conference.
This was over four months ago. My husband's attorney has never
replied to repeated attempts by my attorney to schedule this
meeting. Is there any time limit on how long they have to respond?
Or do I just have to wait?
Brette's Answer: You really need to
talk to your attorney about this. Some states have time limits in
which they want cases concluded. 4 months is a long time to wait for
a conference. I think you should call your attorney and press him or
her about this and say you need to get this resolved and he or she
needs to get in touch with the other attorney. If there is truly no
response from the other side, the case can go back to court. » Return to top
When Your Case
Isn't Moving Forward
Angela's Question: I filed for a
divorce two years ago and we are waiting on a hearing date. Is there any thing I can do to speed up this
process?
Brette's Answer: First
I would talk to your attorney to find out why it is taking so long
for your case to move forward. If you don't want to wait for the
hearing, you and your spouse can go to mediation to see if a
mediator can help you reach an agreement. Mediation is generally
quicker and cheaper than a contested court hearing. Good
luck. » Return to top
What if nothing has
happened since the counterclaim was filed?
Claudine's Question: I filed for the divorce based
on the grounds of abandonment, and my so-called husband contested the divorce
and sent his counterclaim. My lawyer sent a response and a notice of appearance
to his lawyer - since then, it's complete silence. My lawyer told me that he has
not heard from his lawyer. How can I get the divorce to move
forward?
Brette's Answer: You should ask your attorney to
move ahead with scheduling a court date. Good luck.
Why there are so many
court dates
Karyn's Question: Why does it take so long and why
are there so many court dates in order to get a divorce?
Brette's Answer: The explanation is that there is a
procedure that must be followed and it just takes time. Is it too complicated? I
think it is. I think that divorce is far too inaccessible for many people.
Additionally, frankly, having many court dates is an incentive to get people to
settle. The courts are busy and so court dates end up spread apart, instead of
happening all at once. » Return to top
What can I do if my
ex keeps taking me back to court?
Kelli's Question: One full year after our divorce,
my ex is taking me back to court a 2nd time claiming contempt, that I am
preventing the sale of our house, which I occupy. The first time realtors were
present stating that I have been cooperative and nothing is out of line. I think
my ex is doing this because he knows that I need to retain an attorney and
cannot afford to do so. Can I counter-sue that should he do this again, that he
pays my legal expenses?
Brette's Answer: Yes, you can make a motion that he
pay your fees and be penalized for bringing cases without merit.
Can
I make him sign the settlement agreement if he refuses?
Jean's Question: I have had a signed mediation
agreement for over a month now. Next step is the Separation Agreement to be
signed. My husband will not sign this document and states he can take as long as
he wants to take, even years. My attorney confirmed he can take as long as he
likes also. I don't understand how this can be legal? Is there some law that can
help me get my divorce over with - it's been almost a year.
Brette's Answer: Of course it's legal. No one can
be forced to sign a voluntary agreement. If you get to the point where he won't
sign it, your only option is to commence a divorce case. Have you tried asking
him why he won't sign it? Does he want to renegotiate? Find that out and go from
there. » Return to top
Stalling the Divorce Process
Shelley's Question: What can be done if
a spouse is intentionally holding up the divorce, (i.e. not taking
required parenting classes, refusing to settle, etc.). My attorney says that my
husband's attorney won't return phone calls. He has suggested that we can go
back to court and file a motion to hold them in contempt of court and set up
another court date. Can you please give us some ideas about what options we
have?
Brette's Answer: Some spouses do this
kind of thing as a delaying tactic. What you would need to do is
make the court aware of your spouse's failure to follow through on
these orders. You can go back to court with a motion, but in addition ask that
he pay your attorney fees resulting from the delay. You're in a good position to
have that granted. Also, if your attorney lets his attorney know you're going to
ask for that, they'll be sure to quickly process the paperwork and you may be
able to avoid the whole thing. Usually a court will give someone a few opportunities
to follow through by threatening contempt of court and so on. Once
the court is convinced the spouse will never follow through, things
will move ahead. » Return to top
What is the consent to divorce and jurisdiction form?
Maggie's Question: My husband filed uncontested divorce and his lawyer ask him to make me sign the "consent to divorce and jurisdiction" form. What will happen if I don't sign this form?
Brette's Answer: You don't have to sign anything. It sounds like it is a form saying you are not contesting the divorce. It would be wise to have an attorney review anything before you sign it.
Can I get engaged before
the divorce is finalized?
Sheri's Question: I filed for divorce over two
years ago, and my ex has refused to sign the papers. Can I get engaged before my
papers are signed?
Brette's Answer: An engagement is not a legal
contract like a marriage. You can get engaged while your divorce is
pending. » Return to top
How soon can I remarry
after I file for a divorce?
Nicky's Question: I want to get remarried and have
started the divorce proceeding, but my ex didn't sign the papers and we have to
go back to court. How long do I have to wait before I can remarry?
Brette's Answer: You cannot remarry until your
divorce is final. Once it is final you are free to remarry. Some states
have a waiting period that must be met before you remarry, so be sure to check
the laws of your state.
Forged Divorce Papers
Eva's Question: My ex told me his
lawyer drew up some papers to finalize our divorce and asked if I
would sign them. When the papers arrived, I noticed a lot of discrepancies
in the documents and I think they are forged. I'm
not signing anything that is different than the original dates and
so forth. Can the courts make a judgment without me
knowing? Should I contact his attorney (he is local) to show him
copies of the papers? I have a feeling he didn't draw them up.
Brette's Answer: It sounds like you
have serious questions about these papers. You should definitely
contact your ex's attorney and find out what the situation is. A
court won't make a ruling without giving you legal notice and a
chance to appear. » Return to top
What can I do if he
says someone forged his signature?
Angela's Question: I'm getting remarried in June,
and my ex called me stating that he did not sign the paperwork and that someone
else did. I don't want to get married in June to find out that I was never
divorced in the first place. Is there a way that I can delete this divorce and
do it again before June. Please help me, I'm running out of time.
Brette's Answer: The first question I would have is
if he didn't sign it, then who did? In most cases if this happens it's because
the other party forged the name - but since you didn't then who would and why
would they bother? It doesn't make sense. And how does know there are papers if
he never received them? This sounds a bit odd to me. Could he be lying so you
feel you can't remarry? To do it again, you'll have to go to court and have him
let the court know he never signed them and then have the papers signed by him.
I think you should get a consultation with an attorney who can examine the
papers that were filed as well as the affidavits of service and help you figure
out what to do. » Return to top
Can my husband obtain
my cell phone bill and records?
Lynn's Question: Can my husband legally obtain my
cell phone bill and records during the time we were living together? The phone
is in my name only as is the bill.
Brette's Answer: Not unless he has them subpoenaed.
Good luck.
How can I stop my husband
from videotaping me?
Deborah's Question: My husband and I are divorcing,
but are still living in the same home with our two young children. My husband
has made several attempts and has possibly been successful, to either video tape
me or record me when I am taking care of my children. Is there anything that I
can do to stop him from doing this?
Brette's Answer: Ask your attorney if it is illegal
to tape someone without permission in your state. If so, the evidence would not
be admissible. You need to also talk with your attorney about getting an order
of exclusive residency, which would require him to move out. This sounds like a
volatile situation and I urge you to get legal advice and act carefully. Good
luck. » Return to top
Is financial
disclosure required if we can reach an agreement?
Jacqui's Question: Do we have to make full financial
disclosure if we have reached an amicable agreement? Will it delay the
divorce if we don't.
Brette's Answer: You have to complete the financial
disclosure. This is important so that the court can see what your finances look
like and so that you disclose to each other what your finances are. If you don't
complete it, you won't get a divorce. You should talk to an attorney to
get some advice. » Return to top
What if he doesn't
provide proper documents for financial disclosure?
Patti's Question: My ex typed up the mortgage
information rather than submit the bank mortgage printouts of payments He also
typed up his tax-sheltered annuity figures rather than submit the company
information. How can I get the proper documentation?
Brette's Answer: You just need to ask the court to
order him to provide copies of the actual documents. If not, you or your
attorney can just subpoena them. » Return to top
Can
I get a copy of the financial disclosure?
Linda's Question: Am I legally entitled to a copy of
all of the financial disclosure papers that was filled out by my spouse during
our divorce proceeding? My attorney has never asked me if I wanted a copy.
Brette's Answer: Most definitely. Ask for a copy
immediately. Best of luck to you. » Return to top
Can I get copies of
the transcripts from the deposition?
Teresa's Question: Are transcripts from your
deposition considered private information or can I release copies of them to
whomever I choose?
Brette's Answer: Actually they are usually copyrighted by
the transcriptionist and you need to purchase copies. But there is nothing to
stop you from sharing them as long as the records are not sealed.
How do I get a
copy of my Marital Settlement agreement?
Charlotte's Question: How do I get a copy of the
Marital Settlement agreement? Is this something that's usually sent to the
divorcees after the divorce or do I have to pick it up from the court myself?
Brette's Answer: You should receive a copy of your
judgment from the court, which will either attach the settlement or restate
everything that is in it. » Return to top
How do I get a
copy of divorce decree?
Danielle's Question: My ex won't give me a copy of
the divorce decree. How do I go about getting a copy of my divorce decree?
Brette's Answer: A copy of the decree is supposed
to be served on you. Look through your files for information such as the
summons, a petition, some piece of paper that will give the case number. If you
can't locate this information, it would be in the county the divorce was filed.
Divorce files can be searched for by names, so you should ask for that when you
contact the county courthouse. » Return to top
Where does the court send
copies of the finalized divorce?
Heather's Question: Who is the responsible party for
providing you with signed copies of the finalized paperwork signed by all
parties. It was my understanding that the lawyer would give you copies when this
was finished.
Brette's Answer: Documents that are signed by the
court are sent out by the court, but if you are represented by an attorney, your
copy goes to the attorney. However, you are entitled to a copy of anything
you signed.
How long does a lawyer keep a copy of
the divorce?
Darla's Question: My divorce was
finalized last summer, and I just called my lawyer to ask for my
file and a copy of the divorce papers. I was told that they
destroyed the file 8 months after the divorce was finalized.
How long are they required to keep divorce files?
Brette's Answer: Most attorneys store files for at
least seven years. You should contact the Bar grievance committee for your
state. » Return to top
What is the date of
entry for the final decree?
Donna's Question: Is the date of entry of the final
decree when the judge signed the decree or when the decree was filed into the
courts?
Brette's Answer: You should consult with your
attorney or call the court clerk to get a clear answer on how your state
interprets this. Generally, entry means filing, but you do need to check to be
sure. » Return to top
Official
date of divorce
Denise's Question: I filed for a Summary Dissolution, and
filed the final judgment six months later. Which date is the official divorce
date, the date that I filed or the date that the court entered the judgment?
Brette's Answer: In most cases, the date of
dissolution is the date of the final judgment entered by the court. However, a
court can indicate a different date in the judgment if it chooses.
Can
a divorce go through if a spouse dies before the final judgment?
Carla's Question: My husband and I were in the
process of a divorce after 20 years of marriage. He died 11-14-07 and I received
papers the divorce was final on 12-10-07. Does this affect the divorce?
Brette's Answer: A divorce can't go through when a
person is deceased. You need to contact the court with the death certificate and
get it reversed. Check with an attorney who can help you. » Return to top
Can the divorce state
that I will return to my maiden name?
Karen's Question: I just received
divorce papers 5 days ago. It is uncontested and I don't have the
finances for an attorney. Without an attorney, how would I have the
final decree state that I wish to have my name changed back to my
maiden name?
Brette's Answer: It is routine for a judge to
include a provision in the decree that either party can return to a pre-marital
name. However, to make sure, you will need to respond or appear and just make
sure that is the case. You need to find out what your state's requirements are
for appearing - you may need to just file a form or you may need to show up in
court.
When can you take back
your maiden name?
Stephanie's Question: Do you have to wait for the
divorce to be final before you can go back to your maiden name?
Brette's Answer: You can use your maiden name at
any time you want. To change it on legal documents such as a driver's license or
passport though you need a court order.
Resuming your maiden name
Stephanie's Question: Our divorce decree states
that I will retain my maiden name. How much time do I have to change my name if
I'm not ready to do it right away?
Brette's Answer: Divorce decrees
usually give a woman the right to resume the use of premarital name
if she wishes to do so, but do not require it. Therefore, you can do it whenever
you want. » Return to top
How do I change my name after divorce?
Sheila's Question: I don't have a copy of my divorce
decree, but I want to change my last name back to my maiden name. How can I do
this?
Brette's Answer: Get a copy of the divorce decree.
Call the county where the divorce was granted. If you don't know, you may still
be able to get your name changed by using the marriage certificate. Start with
your driver's license. Once that is changed, you can use that as proof for
everything else.
Can a woman be
forced to change her name after divorce?
Cheryl's Question: After my fiancé's
divorce, his wife didn't take back her maiden name. Is there
any way we can get a court order for her to go back to her maiden
name?
Brette's Answer: No. It is completely up to her
what name she uses. Even if the court order included a section saying she could
go back to it, she would not have to. » Return to top
This column provides general information about
the various aspects of divorce. It is not intended to take
the place of legal counsel and should not be considered personal legal advice.
For specific recommendations concerning your
situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim
any liability from any claim arising from any information contained
in this column. This column is not a substitute for legal advice.
