District of Columbia Divorce Procedures

District of Columbia Divorce Procedures

Complete overview of District of Columbia divorce laws for people considering a District of Columbia divorce or filing a District of Columbia divorce with issues to be resolved about child custody, child support, visitation and alimony.

District of Columbia Divorce Residency Requirements

One of the spouses must have been a resident of Washington D.C. for 6 months immediately prior to filing for divorce. Military personnel are considered residents if they have been stationed in Washington D.C. for 6 months.

[District of Columbia Code Annotated; Title 16, Chapter 9, Section 902].

Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of District of Columbia. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the District of Columbia residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

District of Columbia Grounds for Divorce

The Complaint for Divorce is the initial document filed with the District of Columbia court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

A divorce shall granted by the court only upon one of the following grounds:

No-Fault Based Grounds:

a) Mutual separation and living apart for at least 6 months;
b) living separate and apart without cohabitation for at least 1 year. The separation period may be accomplished by living under the same roof, as long as the spouses do not share bed or food.

(District of Columbia Code – Title 16 – Chapter 9 – Sections: 904, 905, 906)

Every divorce case that is filed in the state of District of Columbia must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

District of Columbia Uncontested Divorce

This information is an overview of the uncontested Washington D.C. divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Washington D.C.

In order to file for divorce in Washington, D.C., a person must be a resident of the district for six months before filing. Military personnel stationed in the district are residents if they have lived there for six months.

The District of Columbia is a no-fault jurisdiction. Grounds for an absolute divorce are 1) a six-month mutual voluntary separation and 2) living separate and apart without cohabitation for a year. (“Living separate and apart” may happen under one roof if the spouses do not share a bed or meals.)

Grounds for a legal separation are:

a) mutual and voluntary separation;
b) separation for a year;
c) adultery; and
d) cruelty.

In divorce actions, the person filing is called the Plaintiff; the spouse responding is called the Defendant. Actions are filed in the Superior Court-Family Division.

The required forms to file for a divorce in the District are organized in packets A through G, depending on the situation of the party. The clerk in the Family Law division of the Superior Court provides the appropriate packet upon request. Each packet includes many of the same forms.

Every divorce action begins with the filing of a Complaint for Absolute Divorce, which identifies the parties, the grounds and the relief desired.

The Complaint is filed with DC Vital Statistics (Form 4), which records the action for statistical records.

A copy of the Complaint and a Summons must be served on the Defendant. This may be accomplished in one of three ways:

a) certified mail, return receipt requested;
b) hand delivered to the Defendant;
c) hand delivered to the Defendant’s residence to someone of age and discretion.

Anyone over the age of 18 except the Plaintiff may hand deliver the divorce papers to the Defendant or to his or her residence. The Summons must be delivered within twenty days of its date of issuance.

If the process is served by certified mail, the Plaintiff must file an Affidavit of Service by Certified Mail and attach the return receipt to the bottom of the affidavit. If the process is served by a process server or private individual, he or she completes the legal copy of the Summons and it is filed with the clerk. Either of the steps prove that the Defendant is properly served.

If the Defendant does not file an Answer within 20 days of the date of service, he or she is in default. In the Answer, the Defendant may agree to the allegations in the Complaint or dispute them.

If the Defendant cannot or will not be located to accept service, the Plaintiff must prepare a Motion to Allow Service by Publication, together with Points and Authorities and an Affidavit of Service by Certified Mail. The affidavit states the Plaintiff’s belief that the spouse has lived outside of Washington D.C. for the last six months and describes his or her efforts at making a diligent search to locate him or her. An Order Publication-Absent Spouse is filed with the Affidavit of Service, and service by publication in a newspaper is thereafter ordered by the court. If this fails to produce a response from the Defendant, the action proceeds as a default.

When the spouses agree to an uncontested divorce — that is, when both parties have a comprehensive separation agreement signed by each of them — it is possible to get a divorce in the District of Columbia in three to six weeks.

In an uncontested divorce, the Plaintiff files Complaint and Separation Agreement as well as:

a) The vital records form;
b) The intake/cross referenced sheet;
c) The Vital Statistic Form;
d) A Financial Statement, if alimony or child support are considerations;
e) A Notice of Hearing and Order to Appear (if child support is contested);
f) Filing fee.

Later the Plaintiff files a Praecipe for an Uncontested Divorce, which moves the case toward a hearing.

Usually commissioners preside over uncontested divorces in the district. At or before the hearing, both spouses must sign a Consent Form, which certifies that both spouses agree to the action. The commissioner’s Findings of Fact, Conclusions of Law and Judgment for Absolute Divorce become the basis for the Decree of Divorce.

Failure to answer the Complaint means that the Plaintiff may file a Praecipe for Default and Ex Parte Hearing, which asks the court if it is necessary to appoint an attorney for the Defendant. If the court determines it is not necessary to appoint an attorney, the Plaintiff then files an Affidavit in Support of Default with the Praecipe for Default. In addition, the Plaintiff must file a Soldier and Sailors Affidavit, which certifies that the Defendant is not in the military and not entitled to any protection under the Servicemembers Civil Relief Act.

The Praecipe for Default and a Default Order are attached together, and a judge signs them at the divorce hearing.

District of Columbia Simplified Divorce Procedures

There are no legal provisions in Washington D.C. for simplified divorce.

Each state has its own unique filing procedure. When filing for divorce in District of Columbia, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the District of Columbia Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the District of Columbia Laws and the filing requirements.

District of Columbia Property Division Factors

Washington D.C. is an “equitable distribution” jurisdiction. If there is no valid property distribution agreement, each spouse retains his or her separate property (acquired before the marriage or acquired during the marriage by gift or inheritance) and any increase in such separate property and any property acquired in exchange for such separate property. All other property, regardless of how title is held, shall be divided equitably and reasonably, based on relevant factors, including:

a) the contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker;
b) the length of the marriage;
c) the occupation of the spouses;
d) the vocational skills of the spouses;
e) the employability of the spouses;
f) the estate, liabilities, and needs of each spouse and the opportunity of each for further acquisition of capital assets and income;
g) the assets and debts of the spouses;
h) any prior marriage of each spouse;
i) whether the property award is instead of or in addition to alimony;
j) any custodial provisions for the children;
k) the age and health of the spouses; and
l) the amount and sources of income of the spouses. The conduct of the spouses during the marriage is not a factor for consideration.

[District of Columbia Code Annotated; Title 16, Chapter 9, Section 910].

When dividing property in divorce, the first step is to determine what property is considered marital. Since District of Columbia is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

District of Columbia Spousal Support/Maintenance/Alimony Factors

Either spouse may be awarded alimony, during the divorce proceeding or after, if it is just or proper. There are no specific factors listed in the statute. However, martial fault may be considered.

[District of Columbia Code Annotated; Title 16, Chapter 9, Sections 911, 912 and 913].

Since spousal support or alimony payments can certainly influence how the marital property distribution is awarded, it can become a very intricate part of the divorce settlement. If you and your spouse can not come to agreement on this issue, the court will do this for you and it is almost always done on a case-by-case basis without a set formula.

District of Columbia Child Custody Factors

In the District of Columbia, the court will give each parent equal consideration by considering the following factors:

a) the child’s wishes, if the child is of sufficient age and capacity;
b) the wishes of the parents;
c) the child’s adjustment to his or her home, school, and community;
d) the mental and physical health of all individuals involved;
e) the relationship of the child with parents, siblings, and other significant family members;
f) the willingness of the parents to share custody;
g) the prior involvement of the parent in the child’s life;
h) the geographical proximity of the parents;
i) the sincerity of the parent’s request;
j) the age and number of children;
k) the demands of parental employment;
l) the impact on any welfare benefits;
m) any evidence of spousal or child abuse;
n) the capacity of the parents to communicate and reach shared decisions affecting the child’s welfare;
o) the potential disruption of the child’s social and school life; and
p) the parent’s abililty to financially support a joint custody arrangement. There is a rebuttable presumption that joint interest is in the best interests of the child unless child abuse, neglect, parental kidnapping or other intrafamily violence has occurred. The court may order the parents to submit a written parenting plan for custody.

(District of Columbia Code – Title 16 – Chapter 9 – Sections: 911, 914)

In District of Columbia, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

District of Columbia Child Support Factors

Either parent may be ordered to pay reasonable child support during and after a divorce proceeding. Detailed specific child support guidelines are contained in Title 16, Chapter 9, Sections 916.1 and 916.2. Variations from the official child support guidelines are allowed based on the following factors:

a) the child’s needs are exceptional;
b) the non-custodial parent’s income is substantially less than the custodial parent’s income;
c) a property settlement between the parents provides resources for the child above the minimum support requirements;
d) the non-custodial parent provides support for other dependents and the guideline amounts would cause hardship;
e) the non-custodial parent needs a temporary reduction (of no longer than 12 months) in support payments to repay a substantial debt;
f) the custodial parent provides medical insurance coverage;
g) the custodial parent receives child support payments for other children and the custodial parent’s household income is substantially greater than that of the non-custodial parent; and
h) any other extraordinary factors. Child support may be ordered to be paid through the Clerk of the Superior Court.

[District of Columbia Code Annotated; Title 16, Chapter 9, Sections 911, 916, 916.01, 916.1, and Title 46, Section 201].

District of Columbia child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate District of Columbia child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate District of Columbia child support deviation factors that may be applicable to the situation.

District of Columbia Grandparent’s Rights

Grandparent Rights to Visitation: No statutory provisions for grandparent visitation.

Child Custody Statutes: No mention of grandparents, but following criteria are used in divorce cases: Best interest of the child considering:

a) wishes of the child;
b) wishes of theparties;
c) interaction and interrelationship between the child and parents, siblings and other significant persons;
d) child’s adjustment to home, school and community, and
e) mental and physical health of all persons involved.

District of Columbia Code, Title 16, Sections 911 & 914 (D.C.C. §§ 16-911 & 16-914).

District of Columbia Military Divorce Laws

A District of Columbia military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From District of Columbia Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local District of Columbia court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a District of Columbia court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in District of Columbia
b) You or your spouse must be stationed in District of Columbia

Grounds for District of Columbia Military Divorce

The grounds for a military divorce in District of Columbia are the same as a civilian divorce.

Dividing the Property

Along with the normal District of Columbia property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In District of Columbia, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal District of Columbia child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

District of Columbia Child Support Guidelines

The District of Columbia child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate District of Columbia child support order.

District of Columbia Child Support Guidelines

> Income Share Model *: YES
> Percent of Income Model *: NO
> Worksheets Available: YES
> Extraordinary Medical Expenses Add on: YES
> Childcare Add on: YES
> Secondary Education Support: YES
> UIFSA: YES

* Percent of Income Model: District of Columbia utilizes the percentage of income formula which determines the amount of child support as a percentage of the income of the parent obligated to pay the child support. This percentage is determined by factoring the number of children requiring support. This is the most basic or primitive method for calculating support. Many people believe that it does not take into consideration many important details, which makes this model of support calculation the least exact.

District of Columbia Child Support Definitions

Variation Definition

The child support formula established incorporates a variation of plus or minus 3% for each level. A variation within the plus or minus 3% limit need not be justified by written findings but specific findings are advisable. The factfinder shall consider at least the following factors in the application of a variation:

a) A child has regular and substantial income that can be used for child support without impairment of the child’s current or future education;
b) The noncustodial parent has special needs that require additional subsistence cost;
c) The noncustodial parent pays for certain expensive necessities for the child, such as tuition or orthodontia;
d) The child has moderately more than average needs;
e) High child care costs are involved; or
f) There is no medical insurance coverage, medical insurance coverage does not cover dental or major medical items, or the medical insurance coverage has a high deductible, and the expenses are paid or are to be paid by the custodial parent.

Definition of Income

1. Salary or wages, including overtime, tips, or income from self-employment;
2. Commissions;
3. Severance pay;
4. Royalties;
5. Bonuses;
6. Interest or dividends;
7. Income derived from a business or partnership after deduction of reasonable and necessary business expenses, but not depreciation;
8. Social Security;
9. Veteran’s benefits;
10. Insurance benefits;
11. Worker’s compensation;
12. Unemployment compensation;
13. Pension;
14. Annuity;
15. Income from a trust;
16. Capital gains from a real or personal property transaction, if the capital gains represent a regular source of income;
17. Spousal support received from a person who is not a party to the child support order;
18. A contract that results in regular income;
19. A perquisite or in-kind compensation if the perquisite or in-kind compensation is significant and represents a regular source of income or reduces living expenses, such as use of a company car or reimbursed meals;
20. Income from life insurance or an endowment contract;
21. Regular income from an interest in an estate, directly or through a trust;
22. Lottery or gambling winnings that are received in a lump sum or in an annuity;
23. Prize or award; or
24. Net rental income after deduction of reasonable and necessary operating costs, but not depreciation.

Child Support Modifications

There shall be a presumption that there has been a substantial or material change of circumstances that warrants a modification of a child support order if application of the guideline to the current circumstances of the parties results in an amount of child support that varies from the amount of the existing child support order by 15% or more. A child support order shall not be modified based solely on the enactment of the guideline. The presumption may be rebutted by:

a) Proof of special circumstances such as a circumstance that would take a case outside the guideline; or

b) Proof of substantial reliance on the original child support order issued prior to adoption of the guideline, and that application of the guideline, would yield a patently unjust result.

District of Columbia Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Delaware Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Petitioner

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Respondent

The spouse who does not initiate the Divorce with the court.

Court Name:
The Family Court of the the State of Delaware, In and for __________ County

The proper name of the court in which a Divorce is filed in the state of Delaware. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Petition for Divorce

The title and name of the legal document that will initiate the Delaware Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Decree of Divorce

The title and name of the legal document that will finalize the Delaware Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
County Clerk’s Office of the Family Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

The respondent may file an appearance which will fulfill the requirement of service of process. In addition, a sample Petition for Divorce is contained in Delaware Code Annotated; Title 13, Chapter 1507. [Delaware Code Annotated; Title 13, Chapter 1508].

Property Distribution:
Equitable Distribution

The applicable Delaware law that will dictate how property and debt is to be divided upon Divorce.

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