If you’re getting a divorce and not hiring an attorney, you need to understand certain legal terms. Otherwise, you might make mistakes that could delay your divorce or lead to a divorce agreement that doesn’t meet your needs.
This article covers basic legal terms you need to know when you get a divorce.
Dissolution of marriage
A dissolution of marriage is what we call a divorce in everyday language. In certain states there may be a distinction between a divorce and a dissolution of marriage, but in practice this doesn’t matter.
When a court says that it does or does not have jurisdiction, it’s talking about whether it has the authority to hear a case or not.
For example, all courts have jurisdiction to grant emergency temporary child custody orders in situations where children are in danger.
In contrast, for getting a divorce and for permanent child custody orders, you will need to file for divorce in the court that would have jurisdiction over your case. Usually this is the court that serves the county you or your spouse lives in.
Did you know that when you file for divorce you are bringing a lawsuit against your spouse? In criminal cases the people involved in litigation are called the plaintiff(s) and defendant(s). But in civil cases, such as all dissolution of marriage cases, the people involved are called the petitioner and the respondent.
Someone involved in litigation is called a litigant.
The person filing for divorce is called the Petitioner.
The other spouse, who didn’t file for divorce, is called the Respondent.
Even if you and your spouse want an amicable divorce and you agree on property division, spousal support, child custody, and other topics, one person will be the Petitioner and the other the Respondent. The court will treat the Petitioner and Respondent the same, so it doesn’t matter who files.
Self-represented litigant / Pro-se representation / Pro-per representation
All of these are different terms for referring to a litigant who is representing themselves without hiring an attorney.
If you are representing yourself, the court will expect you to follow court rules just as an attorney would. Nobody at the court can advise you on your case. The court clerk is allowed to help you understand court rules.
To petition the court is to formally ask the court to do something, such as grant a divorce.
Petitioning the court for divorce is how you start the divorce process. Each state will have a form for petitioning the court for a civil case, and some have divorce-specific forms.
A motion is different from a petition. When you make a motion you are asking the court to grant an order about something specific.
For example, you may file a motion that the court grant you temporary child custody while the divorce is in progress.
Sometimes you will hear someone say “I move to…”, which is one way to make a motion in court.
Some states have templates for common motions you make when getting a divorce, such as a motion to receive spousal support. Other states do not offer templates and you will need to write your own (make sure to follow the court rules about including all necessary information). Often, state legal aid organizations have examples or templates of motions for divorce proceedings.
Additionally, there are online services that will provide you will all the required forms and guide you through filling them out. We’ve written reviews of several online divorce services.
When you file for divorce, you must let your spouse know. You must do this officially with a summons. A summons is an official notice to a Respondent that there is a lawsuit filed involving them.
Serving your spouse
After you have a summons, you need to deliver it to your spouse. This is called serving your spouse.
Common ways you are allowed to serve your spouse include: via certified USPS mail; delivering it yourself; paying a fee to the sheriff to serve your spouse. Check your state’s rules for specifics.
In some states you don’t need to serve your spouse if they respond to the divorce petition by filing an appearance in court. For example, in Illinois you can informally tell your spouse you have filed for divorce and then they can file an appearance in court themselves.
File an Appearance / Respond
When a Respondent is served, they need to acknowledge that they received the summons and that they will participate in the legal process.
They do this by filing an appearance with the court, which is a simple form, usually available from the court website. Often this is a general-purpose form used for any civil case – not one specific to divorce cases.
However, if the Respondent does not respond to the summons, the court is allowed to issue a default judgement. A default judgement is when the court makes a decision without the Respondent being involved.
Warning Order of Attorney
In some states, such as Kentucky, if you can’t locate your spouse the court will appoint an attorney to try to deliver a warning order. They will have a limited window of time in which to notify your spouse of the divorce suit, after which the court will allow a default judgement.
An affidavit is a document you sign in front of a judge, notary or other authorized person in which you swear under oath that you are telling the truth about something. For example, if you claim your spouse was assaulting you (and therefore you move to have a temporary restraining order put in place), you would communicate this to the court using an affidavit.
Guardian ad litem
Sometimes the court will decide that children in a divorce need their own representation in court.
This may happen in cases where parents are unable to come to an agreement about custody or parenting time. The person appointed by the court, usually a neutral attorney, is the children’s guardian ad litem.