Marriage can be one of life’s most beautiful yet challenging experiences. Sometimes if a marriage is no longer working or is no longer safe, divorce may be on the table.
When deciding to move forward with a divorce, it’s important to know how to start the process. This guide will walk you through the general steps of filing for divorce and what may be helpful to know along the way.
What to know before filing for divorce
A spouse needs to know which category of divorce they’re seeking before filing for a divorce. With an absolute divorce, the marriage is legally dissolved and both spouses revert to single status. With a limited divorce, the marriage is legally kept intact, but the right for spouses to cohabitate is terminated. A divorce attorney can help figure out which one is best for the situation.
Divorce waiting period
Some states impose a divorce waiting period — meaning a spouse would have to wait a certain amount of time before the divorce can be finalized. This waiting period may begin when they file for divorce or following a required separation period before they can file. The waiting period may also depend on the type of divorce they’re filing for.
If separation is required, this could mean informal or legal separation.1 Informal separation usually involves spouses living separately for a period of time. In addition to living separately, a legal separation typically requires written agreements on how money, custody, or support will be managed before the divorce process begins.
It’s important for a petitioner to know what their state requires, so they don’t unknowingly delay their divorce. A divorce attorney can help figure out a state’s separation and divorce waiting period requirements.
When filing for divorce, there must be a legal reason. This is where fault and no-fault divorces come into play.
No-fault divorces are allowed in all states.2 The grounds for this type of divorce can be irreconcilable differences, incompatibility, and irreparable breakdown. A no-fault divorce can be granted even if one spouse doesn’t want it, but there may be a waiting and/or separation period requirement in some states.
Approximately two-thirds of states still allow fault divorces.3 This type of divorce is more complex because the filer must prove a specific wrongdoing occurred that resulted in the failure of the marriage. Grounds for fault divorces usually include adultery, abuse, criminal conviction, infertility, and incurable insanity. Due to the nature of this divorce, there’s typically no waiting period involved.
The divorce process
Filing a divorce petition
For the divorce process to begin, one spouse must file a petition against the other. This spouse is known as the petitioner. If both spouses agree that divorce is the best option, it doesn’t matter who files first. Once one spouse files a petition, it is served to the other.
Divorce petitions are filed in the county of the state where at least one spouse lives — not necessarily the state where they got married — and usually with the state’s superior court.4 In some states, the division of family law or divorce court will hear the case. There are often residency requirements you must meet to be able to file, so it’s likely a statement proving this proving this will need to be included.
Divorce petitions typically require personal, property, and financial information. And if there are children involved, that information — along with any support that’s requested— must be submitted as well.
A divorce attorney can help meet all of the requirements before filing, including which court to file with.
Request temporary court orders
A state’s requirements and the specific case will determine how long the divorce process takes. Since it may take months to more than a year, temporary court orders for support and/or custody arrangements to help provide relief before the final judgment is made may be requested.5
If a filer request temporary orders, there will be a hearing or mediation to gather information, and then the judge will make their ruling. If the order is granted, it’ll typically be in effect until the final divorce judgment.
Serving the papers
The spouse who didn’t file the divorce petition (aka the respondent) must be legally notified they’re being served divorce papers — whether they know it’s happening or not. The petitioner may be able to ask someone they trust, or hire someone, to deliver the papers if they don’t want to do it themselves. For the divorce proceedings to move forward, the petitioner will have to file a proof of service document to the court to show that your spouse was notified.6
The respondent typically has a certain amount of time to let the court know they received the petition.
If the respondent doesn’t respond, it can become a default divorce where the court may grant all of the petitioner’s divorce requests.7 If the respondent wants to respond later, they may be able to do so within a certain amount of time and overturn the default status. Some spouses choose to enter a default divorce as part of an uncontested divorce — a divorce petition that’s mutually agreed upon from the beginning, so certain parts of the litigation process aren’t needed.8
If they do respond, and the spouses agree to the petition, the final judgment is usually straightforward. On the other hand, the respondent may come back with their own requests or disputes. With their response, the respondent often has to formally serve the petitioner new divorce papers and provide their proof of service to the court before proceedings can continue.
Negotiating a settlement
If the two spouses don’t agree on the initial divorce petition, they’ll typically enter negotiations — where both spouses and their attorneys meet to settle disputes. They may have the option to hold negotiations within the court or out of court on their own. Working with a mediator (a neutral third party) may help negotiations go more smoothly, but in some cases, mediation or arbitration within the court is required.9
Going to trial
If spouses still can’t agree on a settlement, a divorce trial may be held.10 Depending on the case, the trial may happen in front of a judge alone, or there may be a jury involved.
The final judgment
Whether negotiations work or the case goes to trial, a judge will make their final judgment and decree — a document that outlines the judgment and specifies details around child custody, division of assets and debts, child support, and alimony.11 The court will also divide property according to the decree. Once the decree is signed by the judge, the divorce is finalized, and the spouses will receive a certificate of dissolution. This is the legal document showing proof of divorce.
A divorce attorney may help
While a petitioner may not have to hire a divorce attorney in every state, the divorce process can be legally complex, and an experienced divorce attorney can help guide them through it. Plus, if they have access to a legal plan through work, they can get access to a network of attorneys. An attorney can help them understand their rights, meet requirements, and file the right paperwork at the correct time. They could also increase the chances of a fair divorce settlement or trial — should it come to that.