To start the divorce process, you must begin by filing what is called a complaint or a petition for divorce with the court. This means you are suing your spouse for a divorce. Don’t let the term “suing” frighten you or your spouse. “To sue” means to institute legal proceedings against your spouse. That’s all.
Then your complaint or petition for divorce is served on (or officially delivered to) your spouse, usually by a law enforcement officer or a private process server. You can also waive personal service by a law enforcement officer or process server and just accept service by signing a simply accepting the documents without the need for personal service.
If you and your spouse agree to the terms of your divorce, also known as an “uncontested divorce,” the issue of “service of process” doesn’t come up because you submit voluntarily to the jurisdiction of the court by signing and filing with the court your divorce settlement agreement and other documents that indicate you recognize you are subject to the to the jurisdiction of the court.
If you’re the one seeking a divorce and the one who filed for divorce, your spouse has 21 days to respond to the complaint for divorce or 30 days to respond if your spouse is served outside of the state of Utah.
The name for the response to a complaint for divorce is an “answer”. If you wish to countersue your spouse for divorce after you get served with a petition or complaint for divorce, you can file an “answer and counterclaim”.
How the case proceeds from this point could take various routes:
At any point during the pendency of the case, as long as the trial has not concluded and the court issued its decree and orders, you and your spouse can reach a settlement agreement.
After the complaint and answer or answer and counterclaim are filed, the parties have to exchange some initial financial information and information about the evidence each party has and what witnesses the parties might call to testify at trial.
Then the parties have 180 days to conduct discovery. The purpose of discovery is to obtain facts and information that will reveal the truth in a matter and help both parties and the court determine what’s truly in dispute and what is not. After discovery closes, then the case is almost ready to take to trial, but not quite.
Before a divorce case can go to trial in Utah the parties must first to go mediation and try to settle the case (if the parties don’t want to go to mediation they can ask the court to waive the mediation requirement “for good cause,” but it’s not easy to get the court to find good cause to waive mediation. Most couples go to mediation, even if they think it won’t work, if for no other reason than to check the “we went to mediation” box, so that they can get to trial.
After discovery closes and mediation is completed, either party can certify the case as read for trial.
Then the court schedules one or more pretrial conferences to prepare for trial, set a trial date, the number of day the trial will take, and other matters.
After trial, the court can take up to 60 days to issue its decision on the case, after which one of the parties’ respective attorneys is ordered to prepare the Decree of Divorce for the court’s signature.
The greatest influence on how long a divorce case takes is usually how much and how severely the parties fight over the issues. The more they fight and the more things they fight over, the longer and more expensive the divorce process is. But here is a general timeline for a Utah divorce, step by step.
Bottom line: Generally speaking, a contested divorce will likely take between 15 months to 24 months. Bitterly contested divorce cases can take many years. An uncontested divorce can take as little as 45-60 days to complete from the date of filing, if the parties agree on everything.
Timeline
What happens first?
Complaint or petition for divorce is filed (“complaint for divorce” and “petition for divorce” are interchangeable terms). The person who files is the “petitioner”.
What happens next?
Your spouse is served with the summons and a copy of the complaint/petition for divorce. Your spouse is the “respondent”.
When?: The respondent has 21 days to file an “answer” to your complaint. Your spouse will likely not only answer your divorce complaint but also counters through you which is known as a counterclaim.
You will then have 21 days to respond to the counterclaim after it is served on you (and if you have an attorney the counterclaim will be sent to your attorney, and your attorney should provide you with a copy of it).
What happens next?
Financial declaration and initial disclosures. After the complaint have been filed with the court and served on your spouse and after the parties have responded to each other’s respective complaint and counterclaim for divorce they have to exchange what are known as financial declarations and initial disclosures.
Financial declaration. The financial declaration requires you to identify
Whether you are employed and if so, by whom and what you earn from employment.
Other forms of income other than income from a job (unearned income).
Monthly expenses
Business interests, if you have any
Financial Assets. A description of your financial assets
Real Estate. Identifying any interests in real estate that you own
Personal Property. A description of your personal property, such as vehicles, boats, trailers, major equipment, furniture, jewelry, and collectibles
Debts Owed. A list of your debts and obligations, what you owe, and who your creditors are.
Initial Disclosures. Your initial disclosures require you to disclose:
each individual likely to have discoverable information supporting your claims or defenses
each fact witness you may call at trial
a copy of all documents, data compilations, electronically stored information, and tangible things in your possession or control that you may offer at trial
a copy of all documents to which you refer in your pleadings
When?: The petitioner must serve her financial declaration and initial disclosures 14 days after the answer is filed (that’s a lot of work in a fairly short time, so don’t dillydally if you’re the petitioner). The respondent is required to serve his financial declaration and initial disclosures 28 days after the answer is filed.
What happens next?
Temporary orders. After the answer and counterclaim have been filed with the court, it is typical for the parties to request what are known as “temporary orders” from the court. Temporary orders are put in place to ensure that the leaves and affairs of the family are maintained during the pendency of the divorce action. So temporary orders can include things like responsibility for the mortgage and other expenses associated with the house and family. They can include temporary orders of child custody and parent time and child support and spousal support. Temporary orders can include other provisions as well, depending upon the circumstances and needs of your family.
When?: You soonest you could file for temporary orders is when you file your petition/complaint for divorce. Most people file after the petition/complaint for divorce is filed.
After the motions are file the court usually schedules a hearing within 1 to 3 months of the date the motion was filed.
What happens next?
Discovery. Discovery is the process By which the parties request documents and other evidence from each other to help them get a better understanding of the issues, and to determine what issues are really disputed and which ones aren’t or can’t be disputed. Discovery is used to help the parties gain a better understanding of the issues and to help each party build its strongest case against the other party.
When?: You are allowed 180 days for discovery. The discovery period starts the day after the last day that initial disclosures and financial declarations are due from the respondent.
If you have children and you and your spouse are fighting over child custody: a custody evaluation may be ordered. A custody evaluation is supposed to take 4 months. They almost always take longer. Sometimes the custody evaluation won’t be completed by the time discovery closes. Be prepared for this possibility.
What happens next?
Divorce Orientation and Education Courses. If the divorcing couple has minor children then divorce orientation and education courses are mandatory for both parties. You can learn about and sign up for those courses using this link: https://www.utcourts.gov/specproj/dived/
When?: You can take the divorce orientation and education courses any time, even before you file for divorce. Most people sign up for and complete the courses around the time after the answer and the reply to counterclaim have been filed and served.
You cannot obtain a decree of divorce without completing the divorce orientation and education courses or having the requirement to attend them waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).
What happens next?
Mediation. You must go to mediation before the case can go trial. Most divorce actions settle and most settle in mediation. If neither party wants to go to mediation or there are circumstances (such as domestic violence) that would not make mediation feasible or worthwhile, the parties can move to waive the mediation requirement.
When?: You can go to mediation any time, even before you file for divorce, although if you go to mediation before you or your spouse file(s) for divorce the court may make you go to mediation again before you will be allowed to go to trial.
So bear in mind that you can go to mediation at any point in the case.
You cannot obtain a decree of divorce without engaging in mediation or having the mediation requirement waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).
What happens next?
Trial. If the parties do not settle their case (whether in mediation or on their own), then the case goes to trial.
When?: After discovery has closed (after 180-day discovery period has elapsed), then the case can be certified for trial.
It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date. All told, it takes about a year to a year and a half to go from filing for divorce to trial.
It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date.
All told, it takes about a year to a year and a half to go from filing for divorce to trial.
What happens next?
After trial, the court will make its decisions as to the issues that were argued over and “tried” in court and then the Decree of Divorce is prepared and the court signs it.
When?: Usually 30 to 60 days after trial.
Utah Family Law, LC | divorceutah.com | 801-466-9277
How many back and forth claims and counterclaims are allowed in a child custody battle?
Here’s one way to count (I’ll use the jurisdiction where I practice divorce and family law (Utah) as an example):
A child custody case (whether that be a divorce, a paternity action, or just a custody case) is commenced with a complaint or a petition filed with the court.
The response to a complaint or petition can be made by an answer or “answer and counterclaim”. The difference between an answer and an “answer and counterclaim” is that an an answer is a respondent’s first pleading that usually consists of denying the petitioner’s allegations and articulating the defendant’s defenses (Black’s Law Dictionary (11th ed. 2019)). An answer and counterclaim consists of an answer, plus a claim for relief against the petitioner (also termed counter petition, counteraction, or countersuit) (Id.).
The “reply” is the petitioner’s response to the respondent’s counterclaim. It usually consists of denying the respondent’s counterclaim allegations and articulating the petitioner’s defenses to the counterclaim.
And that’s the limit: 1) complaint or petition; 2) answer or answer and counterclaim. And if a counterclaim is filed, it is followed by 3) a reply to the counterclaim. You can’t file anything else as a means of asserting a cause of action, UNLESS you file (assuming you are allowed to file) an “amended” complaint/petition, answer, counterclaim, or reply.
Utah Family Law, LC | divorceutah.com | 801-466-9277