How to File a Divorce Petition

Divorce can be challenging in many ways—emotionally, financially, socially, logistically, and legally. However, no matter how complex a divorce may ultimately be, it has to start somewhere. 

Specifically, to begin the divorce process, one spouse must formally inform the court of their intention to end the marriage by filing a divorce petition.

Though different jurisdictions have their own requirements regarding which specific forms, rules, and timeliness to follow, there are some common steps to take and factors to consider to effectively file a petition for divorce. Having a clear understanding of this overall process can be helpful whether you’re a lawyer, looking into family law, or exploring the possibility of self-representing in a divorce.

In this blog, we will explore the necessary procedures and considerations to bear in mind if you want to file a divorce petition as smoothly as possible.

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Understanding the divorce petition process

In any divorce, someone has to start the process by filing a divorce petition with the court. While the exact forms and steps required for this depend on the jurisdiction (which makes it crucial to confirm the appropriate forms and procedures required where you are filing), looking at the general steps can help make it easier to understand the overall process.

First, let’s start with the essential question for anyone wanting to start a complaint for divorce.

What is a divorce petition? 

A divorce petition is a formal legal document that initiates the divorce process. As the first step in legally ending a marriage, the divorce petition is filed with the court by one spouse, either through their lawyer or themselves (if they are self-representing). 

Sometimes also referred to as the “original petition for divorce,” “petition for dissolution of marriage,” or “complaint for divorce,” a divorce petition includes essential information required by the court for a divorce. 

What is the purpose of filing a divorce petition?

Regardless of what the document is called in your jurisdiction, a divorce petition outlines key information required for a divorce to take place. 

While the forms and requirements vary by jurisdiction, at a minimum, a petition for divorce formally establishes and legally documents:

• The desire of the filing party (also known as the petitioner) to dissolve the marriage 
• The contact information for both parties involved
• What the petitioner wants from the divorce (in terms of division of factors like child custody, spousal support, and division of property)
• The legal grounds for the divorce

The divorce petition must contain accurate and complete information. Missing information, inaccurate details, or failure to comply with the exact legal requirements of a jurisdiction can cause:

• Delays, rejection of the petition, or additional costs caused by corrections or additional court filings
• Conflict and misunderstandings caused by a lack of transparency 
• Unfair proceedings or the violation of the rights and interests of one or both parties

Key steps to file a divorce petition

The basic steps of a divorce petition are relatively simple: one spouse gathers the required information, completes the required documentation, and then files the divorce petition form at the applicable court. 

Below, we’ll explore these steps in more detail.

Step 1: Gather the necessary information and documents for the petition

As previously noted, the details in a divorce petition must be complete and accurate to ensure smooth processing and avoid delays, conflicts, and misunderstandings. 

As such, the petitioner should gather all the necessary information and documents needed to complete and file the petition. This may include details related to the couple’s:

• Property, assets, debts, and finances
• Residency
• Minor children
• Requested plans (for example, for child custody, spousal support, and division of assets)

With this in mind, it’s often a good idea for the petitioner to work with a family law attorney who can help with the process and, once complete, file the forms. Receiving legal assistance or consulting with a lawyer to assist in the divorce process is especially helpful in more complex divorces that involve child custody or the division of significant assets.

Step 2: Complete the required forms

Once the petitioner has all the information necessary, they can complete the applicable divorce petition forms. These forms can often be obtained from the applicable courthouse or state court website online (for example, you can find California divorce forms, including a petition for divorce forms, online).

While the exact requirements vary by jurisdiction (here again, it’s important to ensure that the jurisdiction’s specific laws and requirements are known and followed), a divorce petition form often requires the following details:

• Identifying information: Full contact information for both spouses (the petitioner and the respondent) including full names, addresses, and any other identifying details
• Key dates: Including the date and place where the marriage took place and the date of separation
• Residence information: Different jurisdictions (states, and in some cases, counties) may have different rules for how long someone must live there before they can get a divorce, which may range from weeks to a year
• The basis or grounds for divorce: The reason why the petitioner is seeking a divorce (for example, irreconcilable differences, adultery, or abandonment—though it’s important to note that the availability and requirements of certain grounds for divorce vary by jurisdiction) 
• Information for any minor children: If applicable, information like the child or children’s names, birthdates, and ages as well as requested plans for things like custody, child support, and visitation
• Name change requests: If the petitioner (or respondent, if they request and/or agree to it) wants to change their legal name
• Financial, property, and asset information: Details about marital assets and debts—as well as plans or requests for division
• Spousal support requests: For example, any applicable requests for spousal support or alimony
• Protective measures: Details about any protective or restraining orders, whether existing or pending

As part of the divorce petition filing, you may also need to include other documentation when filing. Depending on the jurisdiction and the couple’s situation, this could include:

• Additional or different forms for couples with children
• A copy of the marriage certificate
• A financial affidavit outlining detailed financial information such as income, assets, and debt
• A property division plan detailing any assets and liabilities that will need to be divided
• A parenting plan for any minor children outlining things like the requested custody and visitation arrangements
• Proof of residency proving that the spouse or spouses meet the residency requirements needed for divorce in a jurisdiction 
• The divorce petition form 
• Summons documentation formally notifying the respondent of the divorce proceedings

Step 3: File the petition with the appropriate court 

Once complete, the petitioner (or their lawyer) can then submit the divorce petition (including any additional required documents or forms) to the appropriate family court for their jurisdiction. There are also typically filing fees that must be paid at the time of filing.

Depending on a jurisdiction’s rules, the petition may need to be filed in person, or it may be possible to file electronically.

It’s important to take note of any deadlines or timelines that must be adhered to for filing the divorce petition. For example, some jurisdictions may have mandatory waiting periods between when a divorce petition is filed and when the divorce can be finalized. Some jurisdictions may implement a statute of limitations dictating how long people have after an event (like a date of separation or discovery) to file for divorce on certain grounds.

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Serving the divorce petition

Once a petition for divorce is filed, it must be served to the respondent. There are many methods in which a divorce petition can potentially be served, though not all are allowed in every jurisdiction. It’s important to know which methods are allowed and follow them in your jurisdiction.

Depending on the jurisdiction’s rules, common potential methods of serving the petition to a spouse may include delivering the documents in person:

• Via paid personal service from a professional process server, sheriff, or authorized person (such as an employee of the law firm handling the divorce) for a separate fee
• Via personal service from an adult who is not involved in the divorce, who physically 
• Via acceptance of service from the spouse, when the respondent voluntarily accepts the petition and signs their acknowledgment
• Via publication, when a spouse cannot be located, there may be instances when service could involve publishing notice of the divorce petition in an approved publication (such as a local newspaper)

In some states, when more common methods of service are not practical, there may be instances where the divorce petition can be allowed to be served via methods like certified or registered mail (for example, in Hawaii) or email or electronic means (such as in some situations with uncontested divorces in some New York courts).

Again, all applicable rules and procedures for serving the divorce petition in your jurisdiction must be followed. Otherwise, an improperly served divorce petition can lead to potential consequences such as delays, dismissal of the petition, sanctions, or other complications.

Legal requirements for proper service 

Be sure to follow the specific requirements for proper service for the jurisdiction where the divorce is filed. These requirements may include:

Proof of service requirements

Typically, regardless of the method used for service for a petition for divorce, a proof of service form must be accurately completed and filed—following the jurisdiction’s specific requirements for proof of service. 

Examples of proof of service requirements could include:

• Signed affidavit or proof of service form: When a process server or authorized representative personally serves the documents to the respondent spouse. In cases where the documents were left with a suitable person, a signed affidavit may also be required.
• Signed return receipt: When the respondent received the documents via certified mail.
• Electronic confirmation: When documents are served electronically, an electronic confirmation of receipt may be required.
• Proof of publication: When the notice of divorce is published, the court may require proof (for example, an affidavit from the publication)

Essentially, keeping proof of service is crucial when serving a divorce petition. Without properly documented and accurate proof of service, issues can arise for all parties involved—from disputes over whether the petition was ever served, claims of improper service, or legal complications.

Timing requirements

In some jurisdictions, there are specific timeframes in which a divorce petition must be served once it’s filed.

Accuracy requirements

Typically, the divorce documents served must be exact copies of the documents that were filed with the court.

In short, proof of service of a divorce petition form helps to ensure the legal validity of the action while also helping to prevent avoidable delays and disputes.

Responding to a divorce petition 

When served with a petition for divorce, a spouse (considered the “respondent”) typically has a few basic options. These may include:

• Responding to the petition—and agreeing. Within the specific timeline for the jurisdiction (in Florida, for example, a spouse must answer within 20 days from when they are served), the respondent can file an official response with the court. This response could indicate that the respondent agrees or disagrees with the terms of the divorce petition. If the respondent agrees on all the major issues, then it results in an uncontested divorce. 
• Responding to the petition—and disagreeing. If the spouse responds within the timeframe but does not agree to the terms outlined by the petitioner, then it becomes a contested divorce. 

The spouses may work to negotiate a settlement agreement on issues like child custody, spousal support, or property division. Negotiation may involve a formal mediation process to help both parties come to an acceptable agreement. If both negotiation and mediation fail to lead both parties to an accepted agreement, then the divorce case may go to trial.

• Not responding to the petition. If a spouse fails to respond to the petition within the specific timeframe, the court may grant the divorce, including the requests outlined by the petitioner in the documents, by default.

Regardless of which route the respondent wishes to take, they will likely want to consult and hire a divorce lawyer for guidance, representation, and to help ensure that the respondent’s rights are protected.

How to prepare and file a response to a divorce petition

As outlined above, when a spouse is served with a divorce petition, they must either issue an official response, or “answer.” If they fail to respond, then the court will likely grant the divorce and its outlined terms by default.

In their answer, the respondent has the opportunity to:

• Acknowledge that they are aware of the pending divorce
• Explain their position
• Request legal relief or different settlement terms

Following the set timeline and specific rules for a response for their jurisdiction, the respondent (with the assistance of their divorce attorney, if using one, to provide legal advice and help craft the response) will generally do the following to prepare their response:

• Review the petition: The first step is to review what the petitioner requested (for example, child custody, property division, or spousal support) in the divorce petition form.
• Complete the response: Depending on the jurisdiction, there will be a specific manner in which to outline the response (for example, there may be an appropriate response form available from the local family court). Once the correct form is obtained, it must be completed fully and accurately. The response should address each point made in the divorce petition, and it must be completed within a specific timeframe.
• Collect applicable additional documents: Depending on the situation and jurisdiction rules, the response may require the inclusion of additional documents. These could include documents such as financial statements or property records.
• Sign the response: Once the response form is complete and any additional documents are collected, they typically must be signed (in some cases, the presence of a notary public is required at signing).
• Make copies: Once signed, copies should be made for all parties (the respondent, the petitioner, and the court).

Once prepared, signed, and copied, the response can be filed according to the jurisdiction’s guidelines. Some jurisdictions, for example, require the response to be filed at the courthouse where the original petition was filed, while others may allow for filing by mail or electronically. There may be filing fees that need to be paid upon filing.

As with the divorce petition, a copy of the filed response must be filed (in a court-approved method, per the jurisdiction’s rules) and appropriate proof of service must be obtained and filed with the court. 

Tips for drafting a divorce petition

Drafting a divorce petition—whether you’re a family law lawyer preparing one for a client or you’re preparing to self-represent—is critically important to ensure the divorce process proceeds efficiently while ensuring the rights of all parties are protected.

Here are a few tips to keep in mind:

Know the jurisdiction’s rules

It’s critically important to know the exact rules and guidelines for a couple’s specific jurisdiction for each aspect of the divorce process. Failure to follow the correct procedure or meet deadlines can cause unnecessary conflict, delays, and issues for a process that is already based on an emotional and challenging time.

Give yourself sufficient time

Speaking of deadlines, make sure you have enough time to get everything done within the timelines required by the court. This helps ensure you aren’t running up against deadlines or limitation dates. Here, attorneys may find technology can help.  

Clio’s Court Rules feature, for example, makes it easy to automatically create calendar events based on rules and deadlines from hundreds of US courts—making it easier to keep filing deadlines, court dates, and more in check.

Be clear

When completing a divorce petition form, write simply and concisely to ensure your position is easy for everyone to follow. 

Use technology to make drafting even easier

For family law attorneys, completing court forms like divorce petition forms can be incredibly time-consuming. Clio Draft helps to automate form drafting while reducing the risk of manual data entry errors. 

Ultimately, divorce can be challenging for many reasons—and it’s important to get the paperwork right. By closely following the jurisdiction’s rules and timelines and ensuring divorce documents are completed accurately, it’s easier to start the process on the right track.

This information applies only to practices in the US. This article is provided for informational purposes only. It does not constitute legal, business, or accounting advice.