Nolo's Essential Guide to Divorce - Emily Doskow [34]
Which you ask for depends on your spouse's last known address and how long it's been since you last saw your spouse. If the last place you know your spouse lived is in the same county where you live or a nearby area, or if it's not been that long since the last time your spouse was known to be in the area, the court will probably require that you publish notice of the divorce in a local paper. Only certain papers are authorized to publish legal notices, so you need to find one that is. You'll probably be required to publish notice of the divorce petition once a week for about four weeks.
If your spouse has been missing for a long time and the last known address is either quite far away or very old, the court may allow you to simply proceed with the divorce without publishing notice. This is called a "waiver" of the notice requirement.
Your local court forms may include forms for asking the court about publishing or waiving service. If they don't, you'll have to prepare your own. You'll need a document asking for what you want, and a declaration stating all the things you did to try to find your spouse. If the local court doesn't have forms that you can use, you can probably find sample forms in your county law library. Chapter 16 explains how to find forms that way. "Preparing Court Documents From Scratch," above, explains how to create the documents you need.
Proof of Service
After your spouse is served with the divorce papers, you need to let the court know that service has been accomplished. You do this by filing a form called "proof of service" with the court clerk, after having the process server sign it and enter the information about where, when, and how your spouse was served.
How the Other Spouse Can Respond
After one spouse files for divorce, the other can either file responsive documents with the court or choose to let the case proceed by default. (See "Default Divorce," above, for an explanation of default divorce.)
The first responsive paper is often called, unsurprisingly, a "response" or "answer." Usually, a response form looks much like the petition, and the responding party-usually called the "respondent" or `defendant"-is required to set out many of the same facts that are contained in the petition. This is to make sure that you agree about such things as how long you've been married, when you separated, and where you and your children live. The response also lets the other party register disagreement with any requests that were made in the petition-for example, the requests relating to division of property. If you've worked that all out, though, there shouldn't be any surprises in the response.
The court may require other documents to he filed with the response-for example, a cover sheet or financial disclosure form. The court clerk can help with finding the right forms and your court's rules.
Negotiating a Settlement and Preparing a Marital Settlement Agreement
As part of your uncontested divorce, you and your spouse will probably want to prepare a marital settlement agreement, sometimes referred to as an "MSA" The MSA will set out your agreements about how you'll split your property and debts, describe whether and how much spousal support (alimony) will change hands, and detail your arrangements for child support, custody, and visitation. In some places, the court forms will be detailed enough that you can use them instead of preparing a separate MSA-you will probably be able to make the assessment yourself. And if you have no kids and you've already divided up your property, you may not need an MSA either.
How to Work Toward an Agreement
Negotiating the terms of an MSA isn't always easy-as you're no doubt aware, the fact that you're trying for an "uncontested" divorce doesn't mean that you and your spouse agree on everything. You're going to have to sit down and figure out what the issues are and then engage in some give and take until you resolve them. You can do this in a few different ways.
Face-to-face negotiation. You and your spouse could sit clown