Should I file a 102 or 103(1) Divorce?
When you want to file for divorce, ASAP, 102 is for you. You file a "102 Divorce" with the court and say you want to get divorced and you intend to live separate and apart without reconciliation for 180 days (365 if you have kids together). Then you get the other person served. Then you start your 180 day countdown. After 180 days passes, you can file for a "Motion to Confirm 102 Divorce" to get a hearing officer date. Next, you fill out an "Affidavit of Living Separate and Apart." Your attorney can then attend the court date without you, show the court your Affidavit, and submit the Divorce Judgment. Once the Judge signs the Divorce Judgment, you're divorced!
If you and your spouse have already lived separate and apart without reconciliation for 180 days (365 if you have kids together), you can file a 103(1) divorce. There are a few ways to finish this divorce up- 3 to be exact! (1) You file, get your spouse served, and they don't respond. So you file a preliminary default and a confirmation of default. Then the Judge signs the Divorce Judgment; (2) You file, get your spouse served, and they file an answer. If you both have lawyers, you can finish by paperwork only- just both fill out an Affidavit saying you've lived separate and apart and want to get divorced. Then the Judge signs the Divorce Judgment; (3) You file, get your spouse served, and they file an answer. You can file for a TRIAL! Get the spouse served with the trial date. Then show up- just arrive in court and tell the Judge you want to get divorced and you and your spouse have been living separate and apart without reconciliation for 180 days. Then the Judge signs the Divorce Judgment.
WHEN WILL DIVORCE NOT BE GRANTED?
Whether you go through the 102 or the 103(1) divorce process, your divorce will NOT be granted if you or your spouse file an "Affidavit of Reconciliation" and prove you have reconciled. What is reconciliation? Either you've moved back together and are using the same address, or you've started sleeping together again. Sometimes both. If a Judge asks you about these very personal topics, you're under oath to answer truthfully, so when the Judge hears there has been living together and/or sleeping together, the Judge will NOT grant a divorce. You'll need to file a new divorce action. (and pay the $500 or so clerk fees all over again)
DO I NEED AN ATTORNEY FOR MY DIVORCE?
Of course, we recommend that you get an attorney. We do divorces all the time, so we can help with common pitfalls such as when the spouse can't/won't get served. We can get a private process server or curator appointed. Another pitfall is getting the right paperwork to the Judge. Many people try to do their own divorces and file a 103 default to try to get a 102 confirmation, and the court will simply deny improper filings. If you really want to try to do it yourself, you're entitled to, and it's called litigating "pro se." We recommend that you contact the Lafayette Bar Association, as they will provide you with forms to help (note: the LBA does NOT have 102 forms- they will only give you paperwork to get 103(1) divorced pro se).