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The divorce process can range from very straightforward to very complicated. If you and your spouse agree on a lot of the major issues in the divorce, you may be able to reach an agreement without lengthy court proceedings. If you and your spouse don’t agree on anything, or one spouse is not ready to end the relationship, the divorce can be drawn out for months or years. It’s very possible that you won’t know how your spouse will react until you’re going through the process. For this reason, it may be a good idea to be as ready as possible for either scenario.
Here are some things you can consider as you get ready for the divorce process:
- Get all the financial documentation you can. This includes bank statements, investments, 401(k) plans, tax returns, credit reports, credit card statements, outstanding loans, etc.
- Make a list (inventory) of property purchased after the marriage. Aside from the big items like a house or car, did you or your spouse purchase appliances, computers, bedroom or living room sets, etc.? If possible, take pictures of the property and include the dates of purchase or the actual receipts.
- Contact an attorney working in family law in your state. Even if you can’t afford an attorney, you can consider paying for a consultation where you can ask specific questions about your case. You can also look for free or sliding-scale representation. Having a lawyer is especially relevant if your spouse has been abusive to you, as some abusers may use legal proceedings to continue their controlling or abusive behaviors.
- Consider emotional and spiritual support. Even if you are ready for a divorce, ending a marriage can be emotionally challenging. It’s normal to face conflicting feelings on ending the relationship, even if it’s abusive. Look for the support you need, whether it’s through friends, family, a therapist, or a support group.
- If you have children together, learn more about the custody laws in your state. Oftentimes, custody, visitation, and child support are decided as part of the divorce process. Custody laws can be complicated, but it can be helpful to at least understand how the “best interests of the child” standard is defined in your state, which guides judges’ decisions.
- If you are a survivor of abuse, please also consider:
- Creating a safety plan: Many abusers become more violent when the survivor is ending the relationship. Make sure to think through specific steps and actions you can take to be as safe as possible.
- Contacting a local organization working with victims of domestic violence: These organizations may be able to provide support, shelter, counseling, safety planning, legal referrals, or other services.
- Filing for a restraining order: If your spouse has been abusive and you are concerned for your safety, you can look on our website to see if you qualify for a restraining order in your state.
What are the requirements to file for divorce?
Each state and territory has its laws regarding who can get a divorce and under what circumstances. The two main requirements are residency and grounds.
Residency
Most states and territories require that you or your spouse live (reside) there for a certain amount of time to file a divorce petition. Generally, you may have to establish that you are a resident at the time of filing the divorce papers or that your spouse is a resident, even if you are not.
Some states and territories will allow you to file for a divorce even if you don’t meet the residency requirements, but the reason for the divorce happened in that state/territory.
Grounds
The law will also include the reasons for which you can get a divorce in that state or territory. These are called the grounds for divorce. Most states have two types of grounds, fault-based and no-fault.
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Often, even if it was one person’s fault that the marriage broke down, many people choose to still use the no-fault ground because it may be an easier route through the court process.
You can see state-specific information on divorce requirements by selecting your state or territory from the drop-down menu to the left.
What documents do I need to file for divorce?
Usually, aside from drafting the divorce petition, you will need to have some additional documents available. You may need original documentation, including:
- your marriage certificate;
- birth certificates of any children;
- prenuptial agreements;
- mortgages; and
- outstanding loans taken out during the marriage.
If you are filing for child support or spousal support, you may also want to have documentation related to:
- your and your child’s regular expenses, including some receipts if available;
- your and your spouse’s income from employment, investments, etc.;
- tax returns filed in recent years; and
- bank and credit card statements.
What are the basic steps to file for a divorce?
Here are the basic steps to file for a divorce if you’re doing it by yourself, and you meet the residency and grounds requirements in your state:
- Drafting the petition. Most states have forms that can help you write (draft) the petition and summons. Make sure to include anything that needs to be decided through the court process, for example:
- division of property and assets, including investments, savings, a home, cars, 401(k) plans, pensions, etc.;
- division of debts that either spouse racked up during the marriage, including credit cards, outstanding loans, etc.;
- child custody, visitation, and support;
- spousal support, including how long it will last and how much it will be; and
- who’s responsible for covering legal costs and fees associated with the divorce.
- Filing the petition. Once your petition is ready, you must prepare the summons and take all of the documents to the court clerk. You may need to sign the petition in front of a notary at the court. Also, you may need to bring at least two additional copies that the court clerk will stamp. (In some states, the petition is called a complaint.)
- Service of process. Requirements for serving the divorce papers (service of process) can be different in each state and territory. In some places, the petition can be served by mail, while in others, it must be delivered personally. You might be able to ask the clerk of the court how the papers must be served. Incorrect service may be a reason that your spouse can get the divorce dismissed later on, and you’d have to start the process all over. To learn more about filing a summons, preparing a petition, and service of process, go to the Starting the Court Case page in our Preparing for Court - By Yourself section.
After filing for a divorce, what are the next steps?
After the divorce papers are filed and served, how the divorce goes forward will depend on what your spouse does next. Here are a few different possibilities of what could happen:
- If your spouse agrees with everything in the divorce papers, s/he should sign the papers and send them back to you and/or the court. This is called an “uncontested divorce.” If there is property that you need divided, if custody of children is an issue, or if you need financial support from your spouse, you will have to agree about those issues in an out-of-court settlement in order to have an uncontested divorce. Note: In some states, you can file a joint petition together with your spouse if all issues are agreed upon.
- If a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway. You should speak to a lawyer in your state about how long you have to wait to see if your spouse answers the divorce papers before you can continue with the divorce.
- If your spouse disagrees with anything in the divorce papers, your spouse will then have the opportunity to file papers telling his/her side and asking for the outcome s/he wants. This is called a “contested divorce.” Even if your spouse agrees that s/he wants to end the marriage, a disagreement on property, finances, custody, or other issues means you may have to attend a series of court appearances to have a judge decide those issues. This time between court appearances might include:
- sharing (disclosing) financial information;
- answering written interrogatories or participating in depositions, which is known as discovery;
- participating in mediation;
- court-ordered interviews or evaluations to establish custody and visitation; and
- establishing child support.
How will property be divided in the divorce process?
Unless there’s a legal agreement saying otherwise, like a pre-nuptial agreement, you and your spouse will need to divide the property, assets, and debts that either spouse accumulated during the marriage. If you and your spouse cannot agree on how to divide them, a judge will do so based on the legal standard in your state, which is either “equitable distribution” or “community property.” For more information on this, see What is the difference between equitable distribution and community property?
However, it’s important to distinguish that not everything is considered “marital property.” Some of the things that might be regarded as “separate property,” and therefore not included in the division of property, are things that either spouse got:
- before the marriage;
- through inheritance;
- through gifts; or
- during the marriage, but from money considered separate property.
What is the difference between equitable distribution and community property?
Even though the specifics may be different from state to state, marital property is divided in one of two ways:
- By the equitable distribution standard- this means property is divided fairly (equitably) between spouses, but not necessarily equally. The judge will divide assets, earnings, personal property, and debt in the way s/he believes to be fair, considering factors such as:
- the length (duration) of the marriage;
- the value of the marital property;
- your and your spouse’s contributions to marital property;
- individual sources of income or earning ability (capacity);
- your and your spouse’s financial circumstances once property is divided; and
- in some states, the judge may consider marital misconduct if it contributed to the end of the marriage.1
- By the community property standard- this means any income, real estate, or other property gotten (acquired) during the marriage is divided equally by both spouses, regardless of who purchased it or earned the income to make the purchase.2 The same goes for debts that either spouse took on during the marriage; they’d usually be divided equally.
If you are filing for divorce and are unsure of how property would be divided in your state, please consider contacting an attorney in your state. You might also find relevant materials on your courthouse’s website or a legal services website.
1 Equitable distribution, Legal Information Institute, Cornell Law School
2 Community property, Legal Information Institute, Cornell Law School
What can I do if I believe the judge’s decision was unfair?
Once a judge issues a final divorce decree after a trial, either party may have a couple of options to address any errors during the trial. The most common are:
- a motion for reconsideration in which you are asking the judge to reconsider his/her ruling and change the decree. This may be an option if you believe the judge:
- didn’t consider or examine certain evidence;
- applied the law incorrectly to your case; or
- there’s new evidence you were not able to show the judge; and
- an appeal in which you ask a higher court to review a decision by a judge in a lower court (trial court) because you believe the judge made a mistake.
You can find more information about each option in the After a Decision is Issued section on our Preparing for Court – By Yourself page. If you are interested in filing a motion for reconsideration or an appeal, it’s extremely important to contact an attorney as soon as possible due to the following reasons:
- Both alternatives have a very short turnaround time. For most states, the typical timeframe for reconsideration is around 15 days, and for an appeal, it is 30 days. You would need to confirm the timeline in your state. After that time has passed, there are usually no other options available.
- Deciding which alternative to use and what to include in the filing papers should be part of a well-thought-out legal strategy. For example, a person may not want to file a motion for reconsideration if s/he also plans to appeal to a higher court.
- The process for correctly filling out, filing, and serving the legal papers can vary on a case-by-case basis. Any errors could make the filing ineffective and leave you without the relief you are seeking.
