How to Start the Divorce Process


We are often asked how the divorce process starts. What happens? The following is a step-by-step outline.

The divorce process starts when you or your lawyer file what is officially known as a Summons and Petition for divorce with the appropriate court in your chosen jurisdiction. That makes you the petitioner or plaintiff in the process. This document includes the following information:

  • Your name
  • Spouse’s name
  • Your child/children’s name(s) and date(s) of birth
  • Date of marriage (or your registration of domestic partnership)
  • Date of separation (if appropriate)

Additionally, an outline of your preliminary requests are included. These requests are subject to change and negotiation and may include:

  • Child custody
  • Spousal support
  • Estate division
  • Attorney fee payment arrangements

The court clerk stamps the petition indicating that a lawsuit has been initiated.

Next, a copy of the petition must be served on your spouse. This is called Service of Process.

Depending on your jurisdiction you may:

  1. Give it to your spouse in an informal manner and ask that he/she sign an “Acknowledgement of Receipt.” It is a good idea to include a stamped, self-addressed envelope for this.
  2. Deliver it formally, which is called a “Qualified Personal Service” – delivered by someone over 18 who is not party to the action. The personal server, often a marshal of the court, signs a proof of service, swearing on pain of perjury that he or she identified the respondent and served him/her the papers on a specified date, at a specified time, at a specified location. Proof of Service starts the divorce process.

ATROs (Automatic Temporary Restraining Orders) – sometimes called Automatic Orders – are then initiated. They restrain you or your spouse from taking your children out of the state without the consent of the other parent. Also, both spouses may not take any action involving money or property that is outside the normal transaction of your daily life. No name change on bank accounts, no taking large amounts of money from joint accounts, no big ticket purchases, no putting the house or second home on the market, no major charitable contributions, no borrowing against or cashing in an insurance policy are allowed under Automatic Orders.

Be aware that even though it is against the law, people often stretch the boundaries of acceptable practices. It is therefore advisable to discuss best practices in your particular case with your attorney, as well as keeping an eye on joint bank and credit card accounts. Creating additional debt during this time can be as big an issue as depleting assets.

If you have been served, you are usually given 30 days to respond. It is a good idea to request an extension, as it often takes more than 30 days to gather the information you need to hire the right lawyer.

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