Divorce Petition: Expert Strategy to Start and Win Your Divorce Case

The filing of the divorce petition triggers automatic temporary restraining orders in most states that immediately prohibit both parties from transferring, encumbering, or disposing of marital property, from canceling or modifying any existing insurance coverage, from removing the minor children from the state, and from taking any action that would dissipate or diminish the marital estate, and this legal freeze prevents the other spouse from taking unilateral action to reduce the assets available for division before the court has entered a final property division order. Divorce-filing-process and temporary-restraining-order counsel can evaluate whether all of the automatic temporary restraining orders applicable in the petitioner's state are in effect upon filing, assess whether the specific marital assets are adequately protected by the automatic orders or whether a separately noticed TRO application is needed, and advise on the immediate post-filing steps required to preserve the marital estate pending the final judgment.

The petitioner who files first has the strategically significant advantage of choosing the initial venue for the proceeding, which in many cases allows the petitioner to select the county or judicial district whose local rules, judicial culture, and substantive law interpretations are most favorable to the petitioner's specific circumstances, and in divorces with an interstate dimension, the first-filed rule can determine which state's law governs the entire proceeding. Divorce-jurisdiction and grounds-for-divorce counsel can advise on the specific venue and forum selection options available to the petitioner, assess whether the available venue options present materially different procedural rules, judicial attitudes, or substantive law outcomes, and develop the venue selection strategy that positions the petitioner most favorably for the litigation of the financial and custodial issues.

The residency requirement for a divorce petition requires the petitioner to allege and ultimately prove that at least one of the parties has been domiciled in the filing state for the period specified by the applicable state statute, which typically ranges from six months to one year, and the petition that fails to include specific factual allegations establishing the required period of domicile exposes the proceeding to a motion to dismiss for lack of subject matter jurisdiction. Divorce-law and divorce-paperwork counsel can advise on the specific residency and domicile requirements applicable to the filing of a divorce petition in the applicable jurisdiction, assess whether the petitioner's current residential situation satisfies the applicable duration and intent requirements, and develop the legal strategy for establishing the residency facts in the petition in a manner that eliminates the risk of a jurisdictional dismissal.

The table below compares the four principal categories of divorce petition documents, identifying the primary legal function of each document type, the content that each type must include, and the law firm's strategic focus in preparing each type.

How-to-get-divorced and irreconcilable-differences-divorce counsel can advise on the specific claims and remedies that must be included in the divorce petition's prayer for relief, assess whether any potentially valuable claim has been omitted from the initial draft, and develop the comprehensive prayer for relief that preserves all of the petitioner's legal claims and prevents any inadvertent waiver of a valuable remedy.

Personal service, in which the summons and petition are delivered directly to the respondent by a process server or sheriff, is the most legally reliable method of service and is required in most states for the initial service of a divorce petition, and a valid personal service is established by the process server's affidavit of service, which must describe the circumstances of the delivery with sufficient specificity to permit the court to find that the service was legally sufficient. Divorce and legal-separation counsel can advise on the specific service of process requirements applicable in the jurisdiction, assess whether the proposed method of service is legally sufficient to confer personal jurisdiction over the respondent, and develop the service strategy that most reliably achieves valid service in the shortest time.

When the respondent evades service by refusing to answer the door, relocating, or otherwise making personal service impossible, the petitioner can apply to the court for authorization to complete service by an alternative means, and the most commonly authorized alternatives are substituted service, in which the documents are left with a competent adult at the respondent's residence and then mailed to the same address, and service by publication, in which notice is published in a newspaper of general circulation for a specified period. Default-divorce and family-restraining-order counsel can advise on the specific legal options available when the respondent is avoiding service, assess whether the available evidence of the respondent's evasion is sufficient to support an application for substituted service, service by publication, or a court order for alternative service, and develop the application strategy for obtaining the court's authorization to proceed with alternative service.

After the divorce petition has been filed and served, the case enters the pendency period during which both parties are subject to the automatic temporary restraining orders, the respondent must file a response within the applicable deadline, and the court may schedule an early case management conference at which the parties identify the issues in dispute, discuss the possibility of early settlement, and establish a schedule for the exchange of mandatory financial disclosures. Contested-divorce and divorce-litigation counsel can advise on the specific procedural steps required following the filing and service of the divorce petition, assess whether an early settlement conference, temporary orders hearing, or other immediate action is needed to protect the petitioner's interests during the pendency of the case, and develop the post-filing litigation strategy that most efficiently moves the case toward a favorable resolution.

The most efficient conclusion of a divorce proceeding is an uncontested settlement that resolves all of the issues identified in the prayer for relief on terms that the petitioner has identified as acceptable before the case proceeds to trial, and the attorney who has the petition's comprehensive prayer for relief as a reference document throughout the settlement negotiation is best positioned to verify that every item in the prayer has been addressed by the proposed settlement. Divorce-mediation and marital-settlement-agreement counsel can advise on the specific elements of a comprehensive marital settlement agreement that resolves all of the issues raised in the divorce petition, assess whether the respondent's proposed terms adequately address all of the petitioner's claims, and develop the negotiation strategy for achieving the most favorable comprehensive settlement.