Commencing the Divorce: The Summons
To begin the divorce and set the process in motion, your lawyer will draft the required papers, which could be called a Summons with Notice, Summons and Petition, Summons and Complaint, or sometimes simply a Complaint. This document tells your spouse he has a set number of days to respond to the paperwork, usually twenty or thirty days. If your spouse does not respond, he could be found in default. Default means you can proceed with the divorce without your spouse's participation. In some jurisdictions, the summons can also contain restraining provisions such as directives that neither party is to hide or dispose of assets while the divorce is pending. In some states, a summons restrains parties from harassing or otherwise bothering each other. It may require the parties to keep all presently existing insurance in full effect and not to change beneficiaries.
The Petition or Complaint
The petition or complaint tells the court basic facts about your marriage, why the court has jurisdiction, and why you want a divorce. Each state has specific requirements about what must be in the petition or complaint, which your lawyer will know. The petition or complaint will typically include most of the following information:
Names, addresses, and birth dates of the parties.
Date and place of the marriage.
Children's names and birth dates.
Employment and income of the parties.
Statement that the jurisdictional requirements of the state have been met, which means one or both parties have lived in the state long enough.
Statement that the marriage is over, usually irretrievably broken or irreconcilable differences in no-fault states Finding of fault in states that require it or where it is beneficial to the distribution of property.
Amount of time parties have been separated. (Some states require a minimum period of separation before divorce.)
Real estate owned by the parties.
Other property owned by the parties (cars, boats, retirement plans, insurance).
If applicable, orders from other courts, like family court, which have already been obtained.
If applicable, notice of any existing orders of protection.
A statement that no other action for divorce is pending in another state.
After the petition or complaint sets out the facts, it then describes what the petitioner is asking for. This part of the petition or complaint is called the “prayer for relief.” It usually asks that the marriage be dissolved, that the children live with one or both parents, that one of the parties supports the other, and that the property be divided fairly and equitably. Sometimes the relief is a short, numbered list at the end of the petition or complaint, and sometimes a detailed explanation for the requested relief is included in the body of the petition or complaint.
The petitioner (sometimes called the plaintiff) and her lawyer sign the petition or complaint. By signing the document, you indicate that you believe the information to be true, and the lawyer recognizes his obligation to be ethical in drafting papers and in representing you. The signatures are then notarized.
Never sign anything you haven't read or don't understand. This is a life lesson, but it holds especially true in matters of divorce. Also, never sign your name to documents containing false information — you will likely be found out and the price you pay could be quite high.
Make sure the petition or complaint is accurate in every way. If there are facts that your lawyer has included that are not quite right, tell him before he files the petition or complaint. It is worth paying the extra money to have your lawyer change the petition or complaint rather than to go forward with it containing inaccuracies or false information. The petition or complaint is a sworn document, meaning that when you sign it you are swearing to its truth and accuracy. You never want to have to say to the court later that you made a mistake because you may look like you were lying.
Serving the Papers
Service is the legal term used when legal papers are delivered from one side to another in a case. Usually a summons must be personally served, that is, the papers must be handed to your spouse. Your lawyer will probably hire a process server — a civilian who works for a company that serves and delivers legal documents — to serve the papers to your spouse. There will be a fee associated with hiring a process server that will vary depending on how difficult it is for the process server to find your spouse. A spouse who is trying to evade service can cause you to run up quite a bill if the process server has to make multiple attempts to serve the paperwork.
If this is to be an amicable divorce, at least for now, your spouse may prefer to pick up the papers at your lawyer's office rather than risk being served in a public place. Your spouse's attorney may also be able to complete service. You may also be able to get a mutual friend to serve the papers. These methods are far more cost effective than hiring a process server.