I realize that the title of this post is a bit odd. However, as a lawyer, knowing when the actual divorce or “dissolution of marriage” case has been started is very important.
Why? Because a divorce case can’t go forward in the court system unless it has been started correctly.
So, when is a divorce started under most state’s laws? The answer: when service of legal documents called a “Summons” and a “Petition for Dissolution of Marriage” (divorce) have been filed with the court and served upon the the person of the other party.
As I discussed in a prior post, legal service of process can be obtained by on somebody by physically giving the legal documents to someone, having a third-party (like a sheriff) serve someone, or publishing notice of service in a proper newspaper in your county.
*As I always write in this blog, you should be careful about any legal advice from blogs like this one. You should consult with a licensed divorce lawyer in your State for further questions or information about the law where you live.*
When is a Summons not Required?
The legal document, called a “Summons” may not be required, in some states, when a Joint Petition for Dissolution of Marriage is filed with the court. A Joint Petition essentially means that both the husband and the wife have signed a single Petition before a notary of public and have sworn they are in agreement that the divorce process should be started.
A Joint Petition is the only situation where a Summons will not be required. As I’m sure you noticed, a Petition must still be filed with the court in order for the divorce proceeding to commence.
Filing nothing with the court means nothing happens. This means that you are still married until a court of law tells you otherwise. I know, most people are probably rolling their eyes and saying something like, “that’s obvious.” But, I’ve had several clients tell me that they don’t need to separate property or decide on custody because they already figured it out and they don’t need the court’s involvement. My answer, “tell that to the court.”
I don’t mean to disparage people from figuring their problems out without a court. Actually, I advise that people do that and, furthermore, most judge’s I’ve met would advise doing that. However, couples still have to start the correct legal proceedings in order to have a court make a judgment that their marriage has been dissolved and, simultaneously, issue an order on things like division of marital property, custody of the children, child support, etc.
As I said above, the law varies from state-to-state. If you are confused or just need help getting a grip on how to get the divorce process started, you should talk with an experienced Minnesota divorce lawyer in your state.
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