Your Day in Divorce Court
Do I have to go to Court to get a divorce?
Many states do not require a hearing to finalize an uncontested divorce provided the spouses have signed the necessary documents and filed them on time. The chart below indicates whether a divorce hearing is required in your state. However, even when no hearing is required for a divorce in your state and county, there are some factors that might cause the judge to schedule a hearing before finalizing your divorce, such as:
- Deviating child support significantly from the guideline amount
- Denying reasonable visitation to a non-custodial parent
- One spouse getting little or no property despite having limited means for self-support
- Failing to file right documents in a timely manner
If you have minor children together, remember that it's the judge's job to make sure that orders concerning child support, child custody and parenting time are in the best interests of your children. Choosing to deviate child support to an amount that varies significantly from the state guideline amount, especially if it is lower, may trigger a hearing. Similarly, if your parenting plan indicates that the non-custodial parent will have little or no visitation with the minor children, the judge may set a hearing to find out why.
If it appears that the distribution of any property seems unfair to one spouse, the court may set a hearing. Obviously, when neither spouse has much property, this is less of an issue. However, when one spouse has a significantly higher income and/or has received significantly more marital property in the divorce agreement compared to the other spouse, the Court may feel obligated to at least hold a hearing to make sure that the seemingly disadvantaged spouse knows that he or she is giving up his or her right to property and/or spousal support. In extreme cases, the judge may order alimony or change the property division even if the disadvantaged spouse didn't ask for it.
If a hearing is required, do we both need to go?
When a hearing is required, usually only one spouse (typically the one who filed for divorce) has to attend. That being said, whenever possible, it is best for both spouses to attend. Many times, the judge is looking at your written agreement and/or decree for the very first time at the hearing. Should questions arise, having both spouses present will allow the judge to clear up any ambiguities immediately and possibly avoid the need for an additional hearing. That being said, in most cases, when the non-filing spouse is not required to attend the divorce hearing, he or she will be more than happy to take advantage of that option.
There are usually ways to finalize your divorce if one spouse's presence at the hearing is required, but they cannot attend. Depending on the state and the judge, the non-attending spouse may be allowed to give testimony over the phone, by sworn affidavit or may have his/her presence excused entirely provided there is a good reason. Being unable to miss work or secure child care or not wanting to waste gas are not usually considered good reasons. Living out of state and/or a significant distance from the courthouse or having serious health issues that make attendance a legitimate hardship are generally considered good reasons for not attending.
In the handful of states that offer a "simplified" or "summary" divorce option, often both spouses are expected to attend the hearing. If this isn't possible, you may need to file a standard divorce so that only one spouse is required to attend.
How do I prepare for my divorce hearing?
On the day of your hearing, you're going to have enough to worry about it without having to track down appropriate clothing, scrounge around for a babysitter, or arrange for time off work. These are the kinds of things that need to be dealt with well before the day of your hearing. In planning for child care, time off work and transportation, be aware that there will likely be many other cases scheduled at the same time as yours. While your hearing will probably take less than 20 minutes, you could end up waiting a couple of hours before your case is called.
You also don't want to arrive at your hearing only to be told that it has to be rescheduled because the Court doesn't have documentation showing that your spouse was properly notified of the hearing date. Every state has different requirements concerning how the non-filing spouse must be notified of the hearing. In many states, your spouse will have already signed a document waiving the right to receive formal notice of the hearing date. In other states, the Court Clerk's office will send a hearing notice to your spouse. If you are unsure, mailing the hearing notice to your spouse by Certified Mail with a return-receipt requested gives you something to show the judge to prove that your spouse was notified should that become an issue during your hearing. Your step-by-step DivorceWriter filing procedures will tell you if your state requires you to formally notify your spouse of the hearing date in writing.
Additionally, have a copy of each of the documents you filed in an organized folder to take to your hearing. While the Judge should have these documents already in the Court's file, it's always wise to bring your copies with you to the hearing. Moreover, even after your hearing is over and you receive your Decree or Judgment finalizing your divorce, you should retain a copy of your divorce paperwork with your permanent records. If your filing procedures indicate that any documents are not to be filed until the divorce hearing, like the Settlement Agreement or Decree, make sure you bring the original and all copies to your hearing.
What happens at the divorce hearing?
Some of the most intimidating aspects of going to court are logistical matters like not knowing where to sit, where and with whom to check in so that the judge knows you're there and ready for your hearing, and not knowing where to stand/sit once your case is called and you are sworn in. Some court houses help alleviate these stressors by having a bailiff or other court personnel located near the entrance of the courtroom checking people in, but in many courtrooms, you probably won't know who to check in with or even if you need to check in. One benefit of arriving early is being able to have a seat and see what other pro se litigants and attorneys do.
Unless you are comfortable with the process, it is more than reasonable to go to the Court Clerk's office and/or the judge's office to ask: My divorce hearing is scheduled for __ o'clock. Do I need to check in with someone or should I just have a seat in the courtroom and wait. If this doesn't result in you getting the information you need, you're probably going to have to wing it. Once you're back in the courtroom, you may want to review your sample testimony if you have time.
Sample Testimony
If you used DivorceWriter to prepare your divorce documents, state-specific sample testimony was included with your filing instructions. The following sample testimony provides a general guideline for divorce testimony:
- Your Honor, my name is _____________________ and I am the Plaintiff/Petitioner in this case.
- I reside at (your physical address).
- My spouse's name is ________________________. He/she lives at (your spouse's physical address).
- We were married on ____/____/____.
- If you or your spouse wants a name change: Prior to our marriage, my/my wife’s last name was _______________.
- I filed for divorce on ______________(date of filing).
- Regarding residency requirements: I have/my spouse has lived in (filing state) for ____ years/months and (filing county) for ____ years/months.
- Regarding divorce grounds: The grounds for divorce are (re-state the grounds exactly as they are stated in your divorce Petition/Complaint).
- My spouse and I have ___ minor or legally dependent children. (Be prepared to state the name, date of birth, and age of each child.)
- I/my Wife is/am not currently pregnant.
- My spouse and I have executed a written agreement that states our agreement as to all matters regarding the support and custody of the minor children as well as division of our property and debts.
- We are requesting that I/my spouse be ordered to pay child support in the amount of $___________ per ______________.
- We are requesting that legal custody of our children be (with me/with my spouse/joint) and that physical custody of our children be (with me/with my spouse/joint).
- If one spouse will be receiving spousal support, explain the terms, or in the alternative, state that neither spouse will receive spousal support.
- That is all I have, Your Honor.
Do's and Don'ts at Your Hearing
Do:
- Arrive at least 15 minutes early.
- Be prepared to deal with the metal detector at the courthouse. Almost all courthouses have metal detectors at the entrance. This can slow you down significantly, especially if lines are long, but the judge isn't going to accept that as a reason for you being late. Many courthouses don't allow people in with cell phones. If this is the rule at your courthouse, you will waste time returning to your car to leave your phone there. Empty your pockets of coins and anything else before you go in. Have your keys in your hand so you can deposit them in the basket before you enter the metal detector. If you carry a purse, you will need to put it in the basket at the metal detector. It is possible that your purse will be searched. Be aware that other things that contain metal that may slow you down—belt buckles, some jewelry, hair clips, shoes (especially women's heels, which usually have metal strips inside the soles), etc.
- Always refer to the Judge as "Your Honor."
Don't:
- Don't bring children to the hearing with you under any circumstances. More than likely, if you bring a child to your divorce hearing, it will upset the judge. Not only might the child be disruptive to court proceedings, but generally, bringing a child in to hear details of his or her parent's divorce is considered detrimental to the child's emotional well-being. You simply must locate a sitter for your hearing. If you don't, you may not be allowed to enter and even if you are, you run the serious risk of incurring the wrath of your judge.
- Don't wear hats, tennis shoes, flip flops, shorts, jeans, short skirts, sleeveless shirts, revealing clothing, t-shirts, or shirts with words, logos, pictures or other graphics. If you can dress like a lawyer, do so. You want your judge to see you as someone who takes your court proceedings seriously.
- Don't argue with your judge. If your judge simply has a basic fact wrong (ex. address, name, birthdate, etc.), you can say when the judge stops talking "Your honor, I think there is a mistake that I would like to bring to your attention if I may…" Beyond that, the judge might say things you don't like hearing and might even find downright offensive, but it is a must that you do not lose your temper. While lawyers and pro se litigants should be held to the same standard in court, the unfortunate fact remains that some judges are harder on people who represent themselves. No matter how clever you think you are, you will not out argue the judge. If you are annoyed or upset, talk to a friend about it later, but do not act out in front of the judge, his staff, or anyone else at the courthouse.
| Is a Court Hearing Required? | |
|---|---|
| Alabama | Usually, no. The Agreement for Taking Testimony form allows the Court Clerk to take the testimony of the Plaintiff in order to finalize the divorce without a hearing in front of a Judge. |
| Alaska | Yes. The hearing date must be at least 30 days after the date the Petition for Dissolution of Marriage is filed. Both spouses are expected to attend the divorce hearing, however there are additional options for requesting approval from the court to allow one of the parties to either testify by telephone or to not appear at the hearing. |
| Arizona | If there are any minor children of the marriage, Petitioner must attend a hearing in order to obtain a default. |
| Arkansas | Yes. Also, the filing spouse should contact the Circuit Clerk and verify that the Court will accept an Affidavit of Corroborating Witness instead of bringing a witness to the final hearing. If not, you must bring an adult witness who has first-hand knowledge of your grounds for divorce and your length of residency. |
| California | No |
| Colorado | Maybe. It depends on what the Case Management Order you will receive from the Court after you file says. Generally, couples with no children will not have to attend a hearing and couples with children will. When a hearing is required, usually both spouses are supposed to attend although if your spouse has a very good reason for being unable to attend, he or she can ask to testify via telephone. |
| Connecticut | Yes. The filing spouse must go to court for a short hearing. The non-filing spouse is not required to attend. |
| Delaware | Maybe. File an Affidavit in Support of Request to Proceed Without a Hearing and Request to Proceed Without a Hearing to ask the judge to finalize the divorce without a hearing. If the request is not granted, one spouse must go to court. |
| District of Columbia | Yes. The filing spouse must go to a hearing before the divorce can be finalized. The non-filing spouse doesn't have to be there unless he or she wants a name change. Also, if the filing spouse doesn't reside in D.C., the non-filing spouse must attend the hearing. |
| Florida | Yes. For a standard dissolution, the spouse that files for divorce must go to a court hearing to finalize the divorce. For a simplified dissolution, both spouses must go to the Court Clerk's office to get the divorce filed and both must go to the hearing. If both of you are unable to do this, you have to file a standard dissolution rather than simplified. |
| Georgia | Probably. Most counties require a hearing, but a few do not. |
| Hawaii | No |
| Idaho | Probably not. You will be notified if your judge requires a hearing. |
| Illinois | Yes. For a standard divorce, the spouse that files goes to a brief hearing to finalize the divorce and the other spouse does not need to come to the hearing. However, for a simplified divorce, both spouses must be there when the divorce is filed and both must attend the divorce hearing. |
| Indiana | No, as long as both spouses sign the hearing waiver form. |
| Iowa | Yes. If it is a default divorce, the spouse that files must go to a hearing. However, if the parties enter into a separation agreement, the spouse that filed for divorce will meet with the judge to review the agreement, but often, this won't actually require a formal court hearing. |
| Kansas | Yes. At least 60 days after the divorce is filed, both spouses will go to the divorce hearing. If the non-filing spouse cannot be there, contact the Court Clerk's office to find out what your options are. |
| Kentucky | No |
| Louisiana | Yes |
| Maine | Yes. While you may be able to have the Case Management Conference waived upon request, a short hearing will be required to finalize the divorce. |
| Maryland | Yes. The spouse that files for divorce will have a hearing with the Family Law Master. |
| Massachusetts | Yes. Both spouses must attend a hearing to finalize the divorce. If one spouse cannot be present, he or she can file an affidavit explaining why and ask to be excused. However, such requests are generally only granted when the non-attending spouse lives far enough away that traveling to Court is cost prohibitive or if that spouse is physically unable to travel. |
| Michigan | Yes, but because of COVID-19 restrictions, all hearings are held online via Zoom. |
| Minnesota | Yes, if you have minor children together. Otherwise, most likely, no hearing will be required. |
| Mississippi | Yes. Both spouses are required to go to a hearing to finalize the divorce. |
| Missouri | Yes |
| Montana | Yes. Only one spouse has to go to court to finalize the divorce if you file a standard Joint Petition for Dissolution. If you file a Joint Petition for Summary Dissolution, both spouses must attend the hearing. |
| Nebraska | Yes. The spouse who files for divorce must attend a court hearing approximately 60 days after the non-fling spouse files his or her Voluntary Appearance with the Court Clerk. |
| Nevada | No |
| New Hampshire | Sort of. Both spouses must attend the First Appearance Session, which is not really a hearing, but rather an opportunity for the Court to meet with the parties and explain how the process will go. If both parties agree to waive the divorce hearing in the Final Decree, the First Appearance Session should be the only time you have to go to Court. |
| New Jersey | Maybe. These counties all offer "no appearance" divorces so that neither spouse needs to go to court: Atlantic, Cape May, Hudson, Hunterdon, Mercer, Middlesex, Somerset, and Warren. In Camden County, you will need to attend a hearing if you and your spouse have minor children together. All other counties require a hearing regardless of whether you have minor children together. Additionally, if the non-filing spouse is in the military, the filing spouse will be required to attend a hearing, regardless of the whether you have minor children together. |
| New Mexico | No |
| New York | No, unless you filed for divorce on the grounds of adultery. If you select any grounds other than adultery, no hearing is required to finalize your divorce. Note: If adultery is the grounds used, not only does the filing spouse need to go to Court, but he or she also needs to take a witness who can corroborate the allegation of adultery. |
| North Carolina | Yes |
| North Dakota | No, if you don't have minor children together. If you have minor children together, one spouse will need to attend a brief court hearing to finalize the divorce. |
| Ohio | Yes. If you file for dissolution, both spouses must go to Court for a hearing. If you file for divorce, only one spouse needs to go to the hearing. |
| Oklahoma | Yes. If you don't have minor children together, one spouse must attend a hearing approximately 10 days after the divorce was filed. If you have minor children together, one spouse must attend a hearing approximately 30 days after the divorce was filed. |
| Oregon | No |
| Pennsylvania | No |
| Rhode Island | Yes. Both spouses should be present at the nominal divorce hearing. If only one spouse can be there, then the spouse who attends the hearing must also bring (1) two witnesses to testify to the residency requirement being met or (2) one witness in court along with the affidavit of another witness concerning the residency requirement. |
| South Carolina | Yes. One spouse must attend the hearing and must also bring a witness who can testify that the spouses have lived separate and apart for one year. |
| South Dakota | No, as long as Defendant's Answer is filed within 30 days of service and the parties file a Stipulation and Settlement Agreement and Affidavit of Plaintiff and Defendant as to Jurisdiction and Grounds for Divorce. If these things don't happen, then a hearing will be required. |
| Tennessee | Yes. The spouse that filed for divorce must attend a brief hearing to finalize the divorce. |
| Texas | Probably not. Prior to COVID-19 restrictions, Texas required a prove-up hearing to finalize a divorce. However, as a result of COVID-19, most counties allow divorces to be finalized by filing an Affidavit for Prove-UP. Note: Some judges may also require a remote hearing, usually using Zoom. |
| Utah | No, if you don't have minor children together. If you have minor children together, a hearing is required. |
| Vermont | Maybe. Some counties do not require a hearing when the parties file a Stipulation and Motion to Waive Final Hearing. |
| Virginia | No. Prior to COVID-19 courthouse closures, most Virginia counties already allowed uncontested divorces to be finalized without a hearing by filing a Plaintiff's Affidavit and Witness Affidavit, while a few counties required Ore Tenus hearings. However, because of COVID-19, all counties allow divorces to be finalized by Affidavit. |
| Washington | No |
| West Virginia | Yes |
| Wisconsin | Yes |
| Wyoming | Maybe. It depends on the county. |
