How to File for Divorce: The Basic Process Explained

This guide is general information, not legal advice. Laws differ from state to state and change over time. For advice about your situation, talk to a licensed lawyer in your state.

Every state has its own divorce laws, but the basic process is similar across the country. Knowing the steps ahead of time can make a difficult period a little easier to manage.

1. Check the residency requirement

Most states require that you or your spouse live in the state for a minimum period before you can file there. The required time ranges from a few weeks to a year, depending on the state. Some states also require you to have lived in a particular county.

2. Understand the grounds for divorce

Every state now allows some form of “no-fault” divorce, where you only need to state that the marriage has broken down, often described as irreconcilable differences. Some states also allow fault-based grounds, such as adultery or abandonment, which can sometimes affect property division or support.

3. Decide: contested or uncontested

An uncontested divorce means you and your spouse agree on all major issues: property, debts, custody, child support and spousal support. It is usually faster, cheaper and less stressful.

A contested divorce means you disagree on one or more issues and a judge may need to decide. Many couples start contested and reach an agreement through negotiation or mediation along the way.

4. File the petition

One spouse files a petition (sometimes called a complaint) for divorce with the court and pays a filing fee. If you cannot afford the fee, you can usually ask the court to waive it. The petition states the basic facts and what you are asking the court to order.

5. Serve your spouse

Your spouse must be formally notified, which is called service. This is usually done by a sheriff, a professional process server, or in some cases by certified mail. Your spouse then has a set amount of time to file a response.

6. Work out the key issues

Property and debts

States divide marital property in one of two ways. Most use “equitable distribution,” meaning a fair but not necessarily equal split. A smaller group of “community property” states generally divide marital property equally. Property owned before the marriage may be treated as separate.

Child custody and visitation

Courts decide custody based on the best interests of the child. Many states encourage parents to create a parenting plan covering schedules, holidays, decision-making and how disputes will be handled.

Child support

Every state uses guidelines, usually based on both parents’ incomes and the time each parent spends with the child, to calculate child support.

Spousal support (alimony)

Alimony is not automatic. Courts consider factors such as the length of the marriage, each spouse’s income and earning ability, and contributions to the household.

7. Financial disclosures

Both spouses usually must exchange detailed information about income, assets and debts. Be complete and honest. Hiding assets can lead to serious penalties.

8. Settlement, mediation or trial

Most divorces end with a written settlement agreement that the judge approves. Many courts require mediation before trial. If no agreement is reached, a judge decides the remaining issues after a hearing or trial.

9. The final decree

Many states have a waiting period between filing and when the divorce can become final. Once the judge signs the final decree, you are legally divorced. Read it carefully and follow its terms. Some steps, like transferring property titles or retirement accounts, require additional paperwork.

Do you need a family lawyer?

A simple, uncontested divorce with no children and few assets can sometimes be handled without a lawyer, using court self-help forms. It is wise to hire a family lawyer if:

• You have children and disagree about custody or support
• You own a home, a business or significant retirement savings
• Your spouse has a lawyer
• There is a history of domestic violence or you feel unsafe
• You suspect your spouse is hiding income or assets

If you are in danger, contact the police or the National Domestic Violence Hotline at 1-800-799-7233. Courts can issue protective orders quickly.

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