Divorce In Hawaii
Divorce, or the dissolution of marriage, is a legal process that terminates the marital relationship between two individuals. In Hawaii, the divorce process is governed by the Hawaii Revised Statutes (HRS), precisely Title 31 Family (Chapters 571-584). As the divorce process can be emotionally, financially, and legally challenging, it is crucial for individuals contemplating or going through a divorce to understand the intricacies of the process and the applicable laws.
Hawaii is a no-fault divorce state, meaning that either spouse can file for divorce without proving any wrongdoing on the other spouse’s part. Instead, the filing spouse must only assert that the marriage is “irretrievably broken,” as stated in HRS § 580-41. This no-fault approach promotes a more amicable and less adversarial divorce process.
Moreover, Hawaii is an equitable distribution state, meaning the marital property will be divided fairly but not equally between spouses. Factors such as the length of the marriage, the parties financial circumstances, and their contributions to the marital estate are considered in the division process, as outlined in HRS § 580-47.
Understanding the divorce process and the applicable laws is essential for several reasons. Firstly, it helps individuals navigate the legal system more effectively, ensuring that they can make informed decisions and protect their rights. For example, in the case of Nancy A. v. Kenneth A. (2015), the Supreme Court of Hawaii clarified that the family court has the authority to consider the parties’ conduct when deciding on the division of marital property. This highlights the importance of awareness of one’s rights and responsibilities during the divorce process.
Secondly, understanding the divorce process and the relevant laws can reduce the emotional and financial toll of the process. A well-informed individual is better equipped to manage expectations and engage in productive negotiations with their spouse or attorney. This can lead to a more amicable resolution and minimize the likelihood of a protracted and costly legal battle.
Eligibility for Divorce in Hawaii
To file for divorce in Hawaii, certain eligibility criteria must be met. This includes satisfying residency requirements and establishing acceptable grounds for divorce, as mandated by the Hawaii Revised Statutes.
Residency Requirements
According to HRS § 580-1, at least one of the spouses must meet the residency requirements to file for divorce in Hawaii. The requirements are as follows:
- The plaintiff (the spouse filing for divorce) must have been domiciled or physically present in Hawaii for at least six months immediately preceding the filing of the divorce complaint.
- The plaintiff must have been domiciled or physically present in the circuit where the divorce action is filed for at least three months immediately preceding the filing of the divorce complaint.
These residency requirements ensure that the Hawaii family court has the jurisdiction to hear and decide divorce cases.
Grounds for Divorce
Hawaii is a no-fault divorce state, which means that a spouse does not need to prove any wrongdoing or misconduct by the other spouse to obtain a divorce. As per HRS § 580-41, the only grounds required to file for divorce in Hawaii is that the marriage is “irretrievably broken.” This implies that the relationship has deteriorated so much that there is no reasonable chance of reconciliation.
In some cases, however, the court may order a conciliation period of up to 60 days if it believes reconciliation is possible (HRS § 580-42). During this period, the parties may attempt to resolve their differences and potentially avoid the divorce.
Additionally, Hawaii allows for divorce on the grounds of legal separation. According to HRS § 580-71, if the spouses have been living separately and apart for a continuous period of two years or more, either spouse can file for divorce on this basis.
An example of a Hawaii divorce case is Kienitz v. Kienitz (2006), in which the Intermediate Court of Appeals affirmed the family court’s decision that the marriage was irretrievably broken. In this case, the court considered the parties inability to communicate, lack of trust, and unwillingness to reconcile.
The Divorce Process in Hawaii
Navigating the divorce process in Hawaii involves several stages, including filing for divorce, serving papers, responding to the petition, obtaining temporary orders, exchanging information, engaging in mediation, attending court hearings, and finalizing the divorce. A thorough understanding of each step is essential for individuals seeking divorce.
a. Filing for Divorce
Required Forms
To initiate a divorce in Hawaii, the plaintiff (the spouse filing for divorce) must complete and file a series of forms, including:
- Complaint for Divorce (Form 1F-P-2039): This form outlines the grounds for divorce and requests the court to dissolve the marriage.
- Summons : This document informs the defendant (the spouse being served) of the divorce action and the required response time.
- Matrimonial Action Information Sheet (Form 1F-P-082): This form provides the court with essential information about the parties, their children, and the case.
- Income and Expense Statement (Form 1F-P-081): This form details each party’s financial situation, including income, expenses, assets, and debts.
Additional forms may be required depending on the specific circumstances of the case, such as child custody, child support, or spousal support issues.
b. Serving the Divorce Papers
Once the divorce papers are filed, the plaintiff must serve the defendant with the divorce documents, which include the Summons, Complaint for Divorce, and any other relevant forms. This can be done through personal service, certified mail, or an alternative method approved by the court (HRS § 580-3).
c. Responding to the Divorce Petition
The defendant has 20 days from the service date to respond to the divorce petition by filing an Answer (Form 1F-P-1071) with the court. If the defendant fails to respond within this time frame, the plaintiff can request a default judgment (HRS § 580-21).
d. Temporary Orders
During the divorce process, either party can request temporary orders to address issues such as child custody, child support, spousal support, and use of marital property. These orders remain in effect until the final divorce decree is issued.
e. Discovery and Exchange of Information
During the discovery phase, both parties must disclose relevant information about their financial situation, assets, debts, and other pertinent matters. This process enables both parties to make informed decisions during negotiations and, if necessary, in court.
f. Mediation and Negotiation
In Hawaii, parties are encouraged to participate in mediation to resolve their disputes amicably. The court may also order mediation in cases involving child custody disputes (HRS § 580-41.5). If the parties can agree on all issues, they can draft a settlement agreement for the court to approve.
g. Court Hearings and Trial
If the parties cannot agree, the case proceeds to trial. At trial, both parties present their arguments and evidence to the court, which will then decide on issues such as property division, child custody, and support.
h. Finalizing the Divorce
Once the court has decided or the parties have reached an agreement, the judge will issue a Divorce Decree, which legally ends the marriage. The Decree will outline the divorce terms, including property division, child custody, and support arrangements.
Forms Needed To File Divorce In Hawaii (Free Download)
Divorce Forms for Divorce Without Children(Download for free)
Form 1F-P-2039 – Complaint for Divorce; Automatic Restraining Order; and Summons to Answer Complaint—> Download Now
Form 1F-P-1071 – Answer to Complaint for Divorce—> Download Now
Form 1F-P-082 – Matrimonial Action Information—> Download Now
Form 1F-P-140 – Proof of Service—> Download Now
Form 1F-P-877 – Motion for Personal Service Without the State & Declaration—> Download Now
Form 1F-P-081 – Income and Expense Statement of Plantiff—> Download Now
Form 1F-P-063 – Asset and Debt Statement of Plantiff—> Download Now
Form 1F-P-081 – Income and Expense Statement of Defendant—> Download Now
Form 1F-P-063 – Asset and Debt Statement of Defendant—> Download Now
Form 1F-P-332 – Appearance and Waiver—> Download Now
Form 1F-P-738 – Statement of Mailing Exhibits “1” and “2”—> Download Now
Form 1F-P-3026 – Statement of Mailing (re Ex Parte Motion for Service by Mail and Posting in Lieu of Publication)—> Download Now
Form 1F-P-333 – Affidavit of Plaintiff (for Uncontested Divorce)—> Download Now
Form 1F-P-1056 – Divorce Decree (Without Children)—> Download Now
Divorce Forms for Divorce With Children(Download for free)
1F-P-2039 – Complaint for Divorce; Automatic Restraining Order; and Summons to Answer Complaint—> Download Now
1F-P-1071 – Answer to Complaint for Divorce—> Download Now
1F-P-082 – Matrimonial Action Information—> Download Now
1F-P-787 – Notice to Attend Kids First—> Download Now
1F-P-835 – Request to be Excused from Attending Kids First—> Download Now
1F-P-186a – Ex Parte Motion for Service by Mail and Declaration—> Download Now
1F-P-186b – Proposed Order for Ex Parte Motion for Service by Mail and Declaration—> Download Now
1F-P-877 – Motion for Personal Service Without the State & Declaration—> Download Now
1F-P-2004 – Ex Parte Motion for Service by Mail and Posting in Lieu of Publication—> Download Now
1F-P-3026 – Statement of Mailing (re Ex Parte Motion for Service by Mail and Posting in Lieu of Publication)—> Download Now
1F-P-332 – Appearance and Waiver (Form Only)—> Download Now
1F-P-140 – Proof of Service (Form Only)—> Download Now
1F-P-738 – Statement of Mailing Exhibits “1” and “2”—> Download Now
Form 1F-P-081 – Income and Expense Statement of Plantiff—> Download Now
Form 1F-P-063 – Asset and Debt Statement of Plantiff—> Download Now
Form 1F-P-081 – Income and Expense Statement of Defendant—> Download Now
Form 1F-P-063 – Asset and Debt Statement of Defendant—> Download Now
Form 1F-P-333 – Affidavit of Plaintiff (for Uncontested Divorce)—> Download Now
Form 1F-P-742 – Supplemental Affidavit Re: Direct Payment Child Support—> Download Now
Form 1F-P-746 – Proposed Divorce Decree (With Children)—> Download Now
Form 1F-P-1087 – Order/Notice To Withhold Income for Support—> Download Now
Form 1F-P-740 – Statement of Mailing Exhibits “1” and “2” (Re: Income Withholding Order/Notice of Support)—> Download Now
Form 1F-P-796 – Proposed Parenting Plan—> Download Now
Form 1F-P-1053 – Proposed Order Regarding Supervised Visitation—> Download Now
Division of Assets and Debts in Hawaii
In Hawaii, the division of assets and debts in a divorce is governed by the equitable distribution principle, as outlined in Hawaii Revised Statutes (HRS) § 580-47. Under this principle, the court seeks to divide the marital estate fairly and equitably rather than an equal 50-50 split. The court considers various factors to determine what constitutes a just and equitable distribution.
Factors the court considers when dividing assets and debts include:
- The length of the marriage
- The age, health, and financial condition of each spouse
- The parties’ respective earning capacities and employability
- The needs of the custodial parent to maintain the marital home for the benefit of the children
- The contributions of each spouse to the marital estate, including financial contributions, homemaker contributions, and contributions to the other spouse’s career or education
- The conduct of the parties during the marriage, including any instances of financial misconduct, waste, or dissipation of assets
- The value of any separate property owned by each spouse
- Any other relevant factors the court deems necessary to arrive at a fair distribution
In addition to dividing the marital assets, the court also apportions the marital debts between the parties, considering the same factors and the parties’ ability to pay the debts.
An example of a Hawaii case illustrating the application of equitable distribution principles is Woodworth v. Woodworth (2011). In this case, the Intermediate Court of Appeals upheld the family court’s decision to award the wife a larger portion of the marital estate. The court considered the wife’s contributions as the primary caretaker of the couple’s children, the husband’s higher earning capacity, and the wife’s role in supporting the husband’s career.
Another example is Nancy A. v. Kenneth A. (2015), where the Supreme Court of Hawaii clarified that the family court has the authority to consider the parties’ conduct when deciding on the division of marital property. In this case, the husband engaged in financial misconduct by hiding assets and misappropriating marital funds, leading the court to award the wife a more significant share of the marital estate.
Alimony (spousal support) in Hawaii
Alimony, also known as spousal support or maintenance, is a financial obligation that may be imposed on one spouse to provide for the other spouse’s support during or after a divorce. Alimony in Hawaii is governed by Hawaii Revised Statutes (HRS) § 580-47, which provides the court with broad discretion to award spousal support based on the parties’ specific circumstances.
When determining whether to award alimony and the appropriate amount and duration, the court considers various factors, including:
- The financial resources of the parties, including their separate and marital assets
- The ability of the spouse seeking support to meet their needs independently
- The duration of the marriage
- The standard of living established during the marriage
- The age, physical, and emotional condition of both parties
- The needs and financial obligations of each spouse
- The contributions of each spouse to the marriage, including homemaking, childcare, and support for the other spouse’s career or education
- The earning capacity and employability of each spouse, including factors such as education, skills, work experience, and the availability of employment opportunities
- Any other relevant factors the court deems necessary to arrive at a fair and equitable award
Alimony can be awarded as a lump sum or as periodic payments, depending on the case’s specific circumstances. The duration of alimony can vary, ranging from short-term support during the divorce process (pendente lite support) to long-term support lasting several years or even indefinitely.
One notable Hawaii case concerning alimony is Childs v. Childs (2015). In this case, the Intermediate Court of Appeals upheld the family court’s decision to award the wife alimony for 60 months. The court considered factors such as the wife’s age, her role as the primary caretaker of the couple’s children, and the financial resources of both parties. The court also considered that the wife had a lower earning capacity than the husband and needed time to become self-sufficient.
Child Custody and Visitation in Hawaii
Child custody and visitation determinations in Hawaii are made in the child’s best interests, as mandated by Hawaii Revised Statutes (HRS) § 571-46. The court considers various factors when determining custody and visitation arrangements, including the child’s physical, emotional, educational, and social needs and the parents’ respective abilities to meet those needs.
Factors the court considers when determining child custody and visitation include:
- The child’s wishes, if the child is of sufficient age and capacity to express a preference
- The child’s relationship with each parent, sibling, and any other significant individuals in their life
- The child’s adjustment to home, school, and community environments
- The mental and physical health of all parties involved
- The willingness and ability of each parent to foster and maintain a close and continuing relationship between the child and the other parent
- The history of parental involvement in the child’s life
- Any history of domestic violence, child abuse, or neglect by either parent
- The parents’ respective work schedules and their ability to provide for the child’s needs
- Any other relevant factors the court deems necessary to consider
Custody arrangements can be categorized as sole custody, where one parent has primary physical and legal custody of the child, or joint custody, where both parents share physical and legal custody.
Visitation, or parenting time, refers to the time the non-custodial parent spends with the child. The court may establish a visitation schedule that accommodates the child’s needs and the parents’ availability while also considering any special circumstances that may affect the child’s welfare.
An example of a Hawaii case involving child custody is Morgan v. Morgan (2006). In this case, the Intermediate Court of Appeals affirmed the family court’s decision to award joint legal custody to both parents, with primary physical custody to the mother. The court considered factors such as the child’s preference, the parent’s willingness to cooperate, and the child’s adjustment to school and community.
In the case of Doe v. Doe (2010), the Supreme Court of Hawaii held that a parent’s sexual orientation should not be a determining factor in custody or visitation decisions as long as the parent’s conduct does not negatively affect the child’s well-being.
Child Support in Hawaii
In Hawaii, both parents are legally obligated to support their children financially. Child support determinations are governed by Hawaii Revised Statutes (HRS) § 576D-7 and the Hawaii Child Support Guidelines, which provide a standardized method for calculating child support based on the parent’s respective incomes and the needs of the child.
The Hawaii Child Support Guidelines utilize an Income Shares Model, which calculates child support based on the combined income of both parents and allocates the support obligation proportionally to each parent’s income. Factors considered in the calculation include:
- The gross monthly income of both parents
- Any pre-existing child support or alimony obligations
- The number of children involved in the case
- The costs of childcare, health insurance, and extraordinary medical expenses for the child
The court may deviate from the guideline amount if it finds that applying the guidelines would be unjust or inappropriate in a particular case, considering factors such as the child’s specific needs, the parent’s financial resources, and the standard of living the child would have enjoyed if the marriage had not been dissolved.
Example of a child support calculation:
Suppose Parent A earns $4,000 per month, and Parent B earns $6,000. They have one child together.
- Calculate the combined income: $4,000 + $6,000 = $10,000
- Refer to the Hawaii Child Support Guidelines to find the appropriate support amount for the combined income and number of children. For this example, assume the guideline amount is $1,500 per month.
- Determine each parent’s proportionate share of the combined income: Parent A: ($4,000 / $10,000) = 40%; Parent B: ($6,000 / $10,000) = 60%
- Allocate the child support obligation based on each parent’s proportionate share: Parent A: ($1,500 * 40%) = $600; Parent B: ($1,500 * 60%) = $900
- The non-custodial parent will pay their share of the child support obligation to the custodial parent. In this example, if Parent A is the custodial parent, Parent B would pay $900 monthly in child support.
A notable Hawaii case involving child support is Fisher v. Fisher (2011), in which the Intermediate Court of Appeals affirmed the family court’s decision to deviate from the guideline amount. The court found that the deviation was warranted based on the child’s special needs and the parent’s financial resources.
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How much is the divorce filing fees in Hawaii
The filing fee for an uncontested divorce in Hawaii was approximately $215. However, this can vary depending on specific circumstances and additional costs such as attorney fees, mediation costs, and other court-related expenses.
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How long does it take to get a divorce in Hawaii?
The length of the divorce process in Hawaii can vary significantly depending on the case’s complexity and whether it’s contested or uncontested.
The process can be relatively quick for an uncontested divorce where both parties agree on all issues. Once all the necessary forms are correctly filled out and filed and the statutory waiting period has elapsed, the court can issue a divorce decree. In Hawaii, there is a minimum mandatory waiting period of 30 days from when the spouse is served with divorce papers before a divorce decree can be issued.
However, the process can take much longer if the divorce is contested, meaning the parties cannot agree on issues such as property division, child custody, or spousal support. A contested divorce involves numerous steps, including discovery, negotiation, possibly mediation, and finally, a court trial if the parties cannot agree. This process can take several months to over a year, depending on the court’s schedule and the complexity of the issues to be resolved.
It’s important to note that each divorce case is unique, and various factors can influence the timeline, including the court’s caseload, the cooperation (or lack thereof) between the parties, and the efficiency of their respective attorneys if they have legal representation.
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How is marital misconduct (like adultery or abuse) taken into account in divorce proceedings in Hawaii?
Hawaii is a “no-fault” divorce state, meaning that the grounds for divorce are typically irreconcilable differences that have led to the breakdown of the marriage rather than specific marital misconduct such as adultery or abuse.
However, while such misconduct may not be directly relevant to the granting of the divorce itself, it can affect other aspects of the divorce proceedings. For example, if there is evidence of abuse, it might impact child custody and visitation decisions, with courts prioritizing the safety and well-being of the children. Similarly, while Hawaii generally aims for an equitable distribution of marital property, a judge may consider egregious misconduct when dividing assets.
Remember that the exact impact of marital misconduct can vary depending on the case’s specifics and the court’s discretion, and legal advice should be sought for situations involving such serious matters.
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If we were married in a different state or country, can we still get divorced in Hawaii?
Yes, you can still get divorced in Hawaii even if you were married in a different state or country. However, residency requirements must be met. Which is at least one spouse must have been a resident of Hawaii for at least six months immediately preceding the application for divorce. It’s always advisable to check current laws and regulations or consult a legal professional for precise information.
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How to get divorce in hawaii when you don’t know the whereabouts of your spouse?
If you don’t know your spouse’s whereabouts and want to get a divorce in Hawaii, you can still proceed with the divorce by publication. This process involves filing a Motion and Affidavit for Service by Publication and a Diligent Search Affidavit, showing that you’ve made a good faith effort to locate your spouse. If the judge is satisfied with your efforts, you may be granted permission to serve notice of the divorce by publishing it in a newspaper. If your spouse doesn’t respond within a specified period, the court may allow the divorce to proceed in their absence.
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How can I protect my rights to my retirement accounts and pension during a divorce in Hawaii?
During a divorce in Hawaii, retirement accounts and pensions are often considered marital assets and can be divided between spouses. Here are a few steps you can take to protect your rights:
- Understand the Value of Your Assets: Understand the total value of your retirement accounts and pension. This may require the professional valuation.
- Hire a Skilled Attorney: An attorney experienced in family law can provide advice tailored to your situation and help protect your interests.
- Consider a Qualified Domestic Relations Order (QDRO): This legal order separates and changes ownership of a retirement plan to give the divorced spouse their share. The spouse then becomes responsible for taxes on their portion.
- Negotiate: If you wish to retain the total value of your retirement accounts or pension, consider negotiating with your spouse. You may offer other assets of equivalent value in exchange.
- Prenuptial or Postnuptial Agreement: If you’re not yet divorced, a prenuptial or postnuptial agreement can specify how retirement assets should be divided in case of a divorce.
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Can a spouse refuse to sign divorce papers? What happens then?
A spouse can refuse to sign divorce papers, but that does not necessarily halt the divorce process. If a spouse refuses to sign, the person seeking the divorce may proceed with a contested divorce.
In a contested divorce, the filing spouse must serve their partner with the divorce papers and provide proof of service to the court. If the served spouse refuses to respond, the court may allow the divorce to proceed by default.
A default divorce means the court may grant the divorce and decide on issues like asset division, child custody, and alimony without input from the spouse who refused to participate.
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How do I change my name back to my maiden name after a divorce in hawaii?
In Hawaii, if you want to change your name back to your maiden name after a divorce, you can request this as part of the divorce proceedings.
When you fill out the divorce papers, there’s a section where you can request the restoration of your maiden name. If the judge approves, the divorce decree will include your maiden name restoration.If your divorce is already finalized and you didn’t request a name change during the proceedings, you’ll need to petition the court for a legal name change. This involves filing a petition with the court, paying a filing fee, and possibly attending a hearing.
After your name change is legally approved, you’ll need to update your identification documents and records, like your driver’s license, passport, social security card, bank accounts, credit cards, and other personal records.
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How to serve divorce papers in Hawaii to the other party?
In Hawaii, divorce papers can be served to the other party in several ways. Here are the most common methods:
- Personal Service: A process server, sheriff, or anyone over 18 who is not part of the divorce case can hand-deliver the divorce papers to your spouse.
- Certified Mail: You can send the divorce papers via certified mail with a return receipt requested. Once the papers are received and signed for, the receipt serves as proof of service.
- Acceptance of Service: If your spouse agrees, they can sign an “Acceptance of Service” document acknowledging they received the divorce papers.
- Service by Publication: If you cannot locate your spouse, you may ask the court for permission to serve the papers by publishing a notice in a local newspaper. You’ll need to show the court you diligently tried locating your spouse.
After the papers have been served, a proof of service or return receipt must be filed with the court to show that the spouse has been officially served.
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What happens if my spouse and I reconcile after filing for divorce?
If you and your spouse reconcile after filing for divorce in Hawaii, you can choose to stop the divorce proceedings. This can be done by filing a motion to dismiss the divorce with the court. If both parties agree to the dismissal, the court will typically grant it and the divorce proceedings will cease. However, if you later decide to divorce, you will have to start the process over again.
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Can i file divorce myself (DIY) in the court without hiring an attorney?
A DIY (Do-It-Yourself) divorce, also known as an uncontested or a pro se divorce, is an option for couples who wish to handle their divorce without legal representation. This option can be cost-effective and time-efficient if both parties agree on all aspects of the divorce, including property division, child custody, visitation, child support, and alimony.
Here are some steps to consider when pursuing a DIY divorce in Hawaii:
- Ensure eligibility: Verify that you meet the residency requirements outlined in Hawaii Revised Statutes (HRS) § 580-1 and that you have valid grounds for divorce under HRS § 580-41 or § 580-71.
- Obtain and complete the necessary forms: Download all the necessary forms required to file a divorce in Hawaii from our website for free. Depending on your circumstances, these may include the Complaint for Divorce, Summons, Matrimonial Action Information Sheet, and additional forms related to property division, child custody, and child support.
- File the divorce petition: Submit the completed forms to the family court in the circuit where you or your spouse meet the residency requirements. Pay the appropriate filing fees.
- Serve the divorce papers: Deliver the divorce papers to your spouse according to the Hawaii Rules of Civil Procedure, which may require service by a process server, certified mail, or other approved methods.
- Complete mandatory financial disclosure: Both parties must exchange financial information, including income, assets, and debts, using the appropriate financial disclosure forms.
- Develop a settlement agreement: Draft a written agreement outlining the terms of your divorce, including property division, child custody, visitation, child support, and alimony. Both parties must sign the agreement.
- Attend parenting education classes (if applicable): If you have minor children, you may be required to complete a parenting education course approved by the court.
- Submit the settlement agreement and additional forms to the court: File your signed settlement agreement and any additional required forms with the family court.
- Request a hearing or submit your case for decision: Depending on your jurisdiction, you may need to request a hearing, or the court may review your paperwork and issue a decision without a hearing.
- Obtain the final divorce decree: After reviewing your paperwork and settlement agreement, the court will issue a final divorce decree, legally ending your marriage.
While a DIY divorce can save time and money, it may not suit all couples, especially those with complex financial situations or contentious custody disputes.
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