Step One:
Fill out all the documents that you will need
to take to the Clerk’s Office to get your divorce started.
Do this BEFORE you take the documents to the Clerk’s Office
and CHECK them for accuracy.
1. Documents
required in every divorce case:
COMPLAINT
SUMMONS
2. Required
only when you do not have the filing fee:
VERIFIED APPLICATION FOR FILING FEE WAIVER
ORDER ALLOWING WAIVER OF FILING FEE
3. Required
only when you cannot locate your spouse:
MOTION AND AFFIDAVIT FOR SERVICE BY
PUBLICATION
ORDER FOR PUBLICATION OF SUMMONS
4. Required
when there are children of the marriage:
AFFIDAVIT VERIFYING INCOME
STANDARD CUSTODY CHILD SUPPORT WORKSHEET or
SHARED/SPLIT CUSTODY CHILD SUPPORT WORKSHEET
Step Two:
Sign the Complaint in the presence of a
Notary Public. If you have to fill out any affidavit or
verified petition mentioned in items 2, 3, or 4 above, those must
also be signed in the presence of a Notary Public.
Step Three:
Make two (2) copies of every document that
you have filled out. Attach these copies by paper clip to
the original documents. This way you are less likely to get
them mixed up.
Remember:
you must notarize documents required and make all copies BEFORE
you go to the Clerk’s Office to file.
Step Four:
Take all of your original documents and their
copies to the Clerk’s Office at the County Courthouse where
divorces are filed. Also, take the filing fee in CASH.
Currently, the fee is $118.00.
Step
Five:
Give the
Clerk all of the documents that you take in and ask the Clerk to
“conform” all copies for you. (“May I have
these copies conformed, please?”)
Pay the
Clerk the filing fee when asked.
IF YOU
ARE ASKING FOR A WAIVER OF THE FILING FEE, BE SURE YOU TELL THE
CLERK IMMEDIATELY. (“I have no money to pay the filing
fee and I am requesting a waiver. I have the verified
application and proposed order with me.”)
Step Six:
The Clerk will attach a “Joint
Preliminary Injunction” to the original Summons and to the
two copies of the Summons. Then the Clerk will “conform”
the copies and return all of them to you. Except for the
Summons, the Clerk will keep the originals of the other documents
you filed in the court file.
Ask the
Clerk for a Certificate of Divorce (Vital Statistics form) and
Child Support information.
Your
divorce action is now filed. But this is just the beginning.
It is now time to get your spouse served with a copy of the
Complaint and Summons.
In every
divorce, your spouse must be “served.” This means
your spouse must be given a copy of the Complaint and Summons (with
Joint Preliminary Injunction attached).
Your
spouse MUST be served in ONE of the following ways:
1. Your
spouse can sign the Admission of Service that is in your packet.
2. A
copy of the Summons and copy of the Complaint can be delivered to
your spouse by the sheriff or by a professional process server.
3. A
copy of the Summons and a copy of the Complaint can be delivered
to your spouse by someone over the age of 18 years — BUT NOT
BY YOU. (This method is not preferred in a pro se
proceeding. However, the Clerk has a form for a non-professional
process server to sign before a Notary Public.)
4. If
you have tried to locate your spouse, but have not been able to
do so, your spouse can be served by publishing the Summons in a
newspaper most likely to give your spouse notice of the divorce
action.
ALTERNATIVE No. 1. Admission of
Service
This is the best way to do it, but requires
the cooperation of your spouse. Fill out the Admission of
Service document and make two (2) copies.
Take or mail your spouse the
following:
the ORIGINAL Admission of Service
one (1) copy of the Admission of Service
one (1) conformed copy of the Complaint
one (1) conformed copy of Summons with Joint Preliminary
Injunction attached
Have your spouse sign the ORIGINAL
Admission of Service in the presence of a Notary Public.
Have your spouse RETURN to you the
ORIGINAL Admission of Service. Your spouse should keep the
copies of the Summons, Complaint, and Admission of Service.
Once you have the ORIGINAL signed
and notarized Admission of Service from your spouse, take the
following to the Court Clerk’s office:
the ORIGINAL Admission of Service signed by your spouse and
notarized before a Notary Public and
the remaining copy of the Admission of Service
Hand the ORIGINAL Admission of
Service to the Clerk and ask the Clerk to “conform” the
remaining copy of the Admission of Service for your records.
Take the conformed copy from the Clerk and keep it. The
Clerk will file the original Admission of Service in the court
file.
ALTERNATIVE No. 2: Service by the
Sheriff or by a Professional Process Server
After you file your divorce, the
Clerk will attach a Joint Preliminary Injunction to the Summons
and hand you back the following: the original Summons, two (2)
conformed copies of the Summons and two (2) conformed copies of
the Complaint.
You will now take these documents to either
the civil department of the County’s Sheriff’s
Department for service or to a professional process server.
Give the deputy or the process
server the following documents:
the original Summons with Joint Preliminary Injunction attached
one (1) conformed copy of the Summons with Joint Preliminary
Injunction attached
one (1) conformed copy of the Complaint
Pay the deputy or process server the
required fee.
Tell the deputy or process server
where your spouse can be located — residence, workplace, or
any other place the person can be found.
The deputy or process server will
then take care of serving your spouse. After your spouse is
served, the deputy or process server will fill out a Return of
Service.
At the time you pay the deputy or the process
server the fee, you need to find out what their practice is for
filing the Return of Service. Ask this question: “Do
you automatically file the Return of Service with the Court
giving me notice that it has been done or do you give the Return
of Service back to me for filing with the Court?” It
makes no difference who actually files the Return of Service with
the Court. The point is this: the Return of Service must be
filed with the Clerk where you filed your divorce action before
you can go to default judgment and obtain your divorce.
What if your spouse is outside the State of
Idaho? You can have a Sheriff or a process server in
another state serve your spouse. Simply contact the Sheriff
of the county where your spouse lives in another state or a
process server who operates in that county and mail to them the
documents you would have given a Sheriff or process server in
this state. You should ask, however, if their state
requires showing the original Summons before a copy is served.
If the other state does NOT require showing the original Summons,
do NOT send it in the mail. Once your spouse has been
served in the other state, the Sheriff or the process server will
mail back to you the Return of Service AND the original Summons (if
required to show your spouse) for service. You will have to
file these documents with the Clerk before you can obtain a
default divorce.
ALTERNATIVE No. 3: Service by a
person over the age of 18
While it is possible to have a
friend or anyone else over the age of 18 (but not yourself) to
serve your spouse, it is not a preferred method by this court.
Typically, such individuals have no experience in proper service
techniques.
The method of having a friend or
someone else over the age of 18 serve your spouse is the same as
having a Sheriff or professional process server to it, however,
you must prepare the proper affidavit for your friend or other
person to complete before a Notary Public. You should have
received a copy of such an affidavit in the packet you purchased
from the Clerk. Note, however, that if the divorce is not a
“friendly” one, this technique is probably not the one
to use.
ALTERNATIVE No. 4: Service of spouse
by publication
This
procedure can be used only when your spouse cannot be located
after “due diligence.” Furthermore, it is
expensive because you must have the Summons published in a
newspaper. If you need to serve your spouse by publication,
ask the Clerk for the separate packet and instructions for
service by publication.
Wait twenty (20) days. Before you can
schedule your divorce hearing, you must wait twenty (20) days
from (and NOT counting) the date your spouse signed the Admission
of Service OR twenty (20) days from (and NOT counting)
the date your spouse was served with Summons and Complaint.
NOTE: If
your spouse files an Answer in the Clerk’s office before the
end of the twenty (20) days, you CANNOT schedule a default
divorce hearing. Furthermore, you should now consult an
attorney.
Fill out the following documents:
MOTION FOR DEFAULT AND AFFIDAVIT OF DEFENDANT’S COMPETENCY,
MAJORITY, MILITARY SERVICE, AND LAST KNOWN ADDRESS
AFFIDAVIT OF SERVICE OF SUMMONS, COMPLAINT, AND JOINT PRELIMINARY
INJUNCTION
ORDER OF DEFAULT
DECREE OF DIVORCE
Certificate of Divorce (vital statistics form)
If you have children, you must also
fill out these documents:
AFFIDAVIT VERIFYING INCOME
STANDARD CUSTODY CHILD SUPPORT WORKSHEET or SHARED/SPLIT
CUSTODY CHILD SUPPORT WORKSHEET
Sign the Affidavit of Defendant’s
Competency, Majority, Military Service, and Last Known Address in
the presence of a Notary Public. ALSO, if you are seeking a
child support order, sign the Affidavit Verifying Income before a
Notary Public and make sure you ACCURATELY and FULLY complete one
of the Child Support Worksheets.
It is highly recommended that if you plan on
a child support order based upon a Shared/Split Custody
arrangement that you seek the advice of an attorney experienced
in family law before attempting to complete the form.
Pick up your divorce certificate (vital
statistics form) from the Clerk’s Office. Fill out
numbers 1 through 13 on the top of the form and 22a through 26b
on the bottom of the form. While printing is allowed, if
you are a competent typist and have access to a typewriter, use
of a typewriter in filling out the form is preferred.
Make three (3) copies of the Decree of
Divorce.
Make one
(1) copy of each of the other documents listed in Step Two that
you need -- remember, if you are seeking a child support order,
you need the affidavit verifying income and a child support work
sheet completed.
Make one
(1) copy of the Certificate of Divorce.
Attach
two (2) copies of the Decree of Divorce to the original Decree.
Put the third copy of the Decree (and each of the copies you made
of the other documents in Step Two) in your personal file. You
will NOT need to take the third copy of the Decree or the single
copies of the other documents in Step Two to the Clerk. To
do so just adds to the confusion of document filing before the
default hearing.
Take the following to the Clerk:
Original Order of Default
Original Affidavit of Defendant’s Competency, etc.
Original Certificate of Divorce
Original Decree of Divorce with TWO copies attached
Two (2) stamped, legal-size envelopes, one (1) addressed to you
and one (1) addressed to your spouse
IF you
are seeking a child support order as a part of your decree also
take:
the original Affidavit Verifying Income AND
Child Support Worksheet
Give all
of these documents to the Clerk.
Ask the
Clerk to schedule your divorce for a default hearing.
You
should attend at least one session of default divorces before you
appear for yours. It is better to go twice, but make an
effort to attend at least one.
Each
judge approaches pro se divorces differently. However, most
judges will “walk” the pro se plaintiff through the
default procedure. Still, you should go to at least one
default divorce session before yours is scheduled. This way
you will hear the types of questions you will be asked and the
types of answers you are expected to give. This should
significantly reduce your anxiety at the time of your hearing.
Normally
the judge will keep the court file at the end of the hearing.
The Clerk receives it from the judge after all hearings have been
completed. Usually later that day, the Clerk will mail out
a certified copy of the Decree of Divorce to you and to your
spouse.
Once the Decree of Divorce is filed for record and copies are sent out, you are divorced. Your spouse will have forty-two (42) days to appeal the awards made in the Decree. After the forty-two (42) days have passed and there is no appeal, either party may move to modify child support or custody and visitation. Modification issues are best left to an attorney to handle. The Clerk has no forms for you to use to modify child support, custody, or visitation issues — so don’t ask.