No matter the circumstances, divorce can be difficult and painful. After all, you have to navigate a complicated legal process in addition to emotional and financial challenges. Still, although no two divorce proceedings are alike, most follow the same general format. Here's a step-by-step look at how the divorce process works.
- Depending on state regulations, it can take as few as six weeks to complete an uncontested divorce, where neither party contests the grounds for divorce (less time if there are no children, shared assets, or other complicated issues). Contested divorce cases may last from six months to several years.
- The average cost of divorce runs between $15,000 and $20,000. The costs are generally higher when spouses cannot agree to terms and the case goes to trial.
- An experienced family law attorney can explain your rights and responsibilities and help you navigate the divorce process.
- All states offer a form of no-fault divorce, but you still need to file based on legal grounds.
- Sometimes, a trial or legal separation occurs before a divorce.
Step 1: File the Divorce Petition
The divorce process starts with a divorce petition. Whether or not both parties agree to the divorce, one spouse—the petitioner—must file a legal petition asking the court to terminate the marriage. The petition must include:
- A statement that at least one spouse meets the state's residency requirements for divorce: In general, states require at least one spouse to live in the state for three to 12 months and in the county where the petition is filed for a minimum of 10 days to six months. The court cannot accept the case until the spouses meet the state's residency requirements.
- A legal reason for divorce: These vary by state and whether you file an at-fault or a no-fault divorce. At-fault grounds include adultery, abandonment, impotence, infertility, criminal conviction, emotional or physical abuse, substance abuse, and mental illness. No-fault grounds include irreconcilable differences, incompatibility, and irretrievable breakdown.
- Any other statutory information the state requires
Step 2: Request Temporary Court Orders
Courts understand that waiting months for a judge to finalize a divorce is not practical in every situation—say, if you're a stay-at-home parent who is raising the kids and financially dependent on your spouse. Therefore, you can ask the court for temporary orders regarding child custody, child support, and spousal support when you file for divorce.
If you ask for a temporary order, the court holds a hearing, gathers information from both spouses, and rules on the request. Typically, the judge acts quickly to grant the temporary order, which remains in force until the court orders otherwise or the divorce is finalized.
You can apply for a temporary order when you file for divorce. If you neglected to do so, it's best to apply as soon as possible.
Step 3: File Proof of Service
When you file for divorce and request temporary orders, you must provide a copy of this paperwork to your spouse and file a document called proof of service with the court. This document tells the court that you met the statutory requirements for giving (aka "serving") your spouse a copy of the divorce petition. The judge cannot proceed with a divorce case if you don't properly serve your spouse and file the proof of service.
This step can be a straightforward process if your spouse is amenable to the divorce and agrees to sign an acknowledgment of service. On the other hand, service of process can be challenging if your spouse does not want the divorce or otherwise intends to make the process more difficult for you. In these cases, it's best to hire a licensed professional who is experienced in delivering documents to tricky parties.
When your spouse—the respondent—receives the paperwork, they must file a response to the divorce petition within the specified time. Failure to respond on time could result in a "default" judgment, which can be difficult and expensive to reverse. The respondent has the option to dispute the grounds for an at-fault divorce, any allegations made in the petition, or decisions regarding child custody, property division, financial support, and the like.
If your spouse retained an attorney, the paperwork can be delivered to that attorney's office. This can be a good option if your spouse is actively evading receipt of the documents.
Step 4: Negotiate a Settlement
Unless you and your soon-to-be former spouse agree on matters such as custody, support, and property division, you will have to negotiate a settlement. The court may schedule a settlement conference at which you, your spouse, and your attorney(s) meet to discuss the case.
Sometimes, the court arranges mediation with a neutral third party who can help resolve any remaining issues. Some states mandate mediation, but even when it's not required, it can be a helpful way to save time, money, and stress during the divorce process.
Step 5: Go to Trial, If Necessary
If negotiations fail, the court must step in, which means a divorce trial. Typically, a trial is held before a judge, but it may be held in front of a jury in some cases. In either case, both sides present evidence and call witnesses to support their claims regarding child custody, financial support, property division, and other divorce-related matters.
The court considers all the evidence and testimony and renders a final and binding decision. Keep in mind that divorce trials are expensive, time-consuming, and require a significant amount of preparation. It's often worth the effort to explore other options for dispute resolution, such as mediation, collaborative divorce, or private arbitration.
Step 6: Finalize the Judgment
The final step in the divorce process, whether it's an amicable divorce or one that requires a trial, is when the judge signs the judgment of divorce. Also called an order of dissolution, this ends the marriage and specifies the details regarding custodial responsibility and parenting time, child and spousal support, and the division of assets and debts.
If you and your soon-to-be ex negotiated a settlement, the filing spouse's attorney generally drafts the judgment. However, the judge issues the final order if the divorce goes to trial.
You and your spouse may decide to separate in advance of a divorce or to live apart without ever divorcing. This can be an informal step between two people or a formal, legal arrangement that involves the court and depending on the state in which you live.
Some states require that couples separate before initiating or finalizing the divorce process. Others do not. A trial separation involves a couple agreeing to live apart, often as they try to reconcile their differences. A trial separation doesn't involve a court and property acquired during this time is considered to be marital property (belonging to both spouses, unless specifically noted as not so).
For trial separations of extended periods, a couple might decide to put specifics concerning bill-paying responsibilities, the division of parenting responsibilities, child visitation, household duties, etc., in writing.
With a legal separation, a court grants the wishes of both parties to separate but not divorce. If either one requests divorce instead, the separation will not be granted and divorce proceedings will ensue.
Some states do not acknowledge legal separations. In such instances, a couple may proceed with their own, permanent separation by creating a written document that details all concerns, including alimony, child support, child custody and visitation, and the division of assets and liabilities.
Determining Grounds for Divorce
As mentioned above, one may file a no-fault or an at-fault divorce. All states provide for no-fault divorces, in which both parties agree that neither is responsible for the need to end the marriage.
As for at-fault divorces in states where they're allowed, spouses may petition for this type of divorce for different reasons. For example, a person may want to make clear on the record the behavior of the offending spouse. Or, they may want to use the potentially unsavory information to try to sway the court's decisions about the division of property and debts, child custody, and other relevant issues.
Regardless of the reasons, all allegations must be proved by the spouse claiming them and lawyers may be involved. At-fault divorces can be more expensive than no-fault divorces as a result, and the process to obtain them can take longer to complete.
Should I Hire a Divorce Attorney?
In most states, you don't have to hire a lawyer. Still, it can be the best way to protect your interests (assuming you hire a competent attorney, of course). You should always seek an attorney if your spouse hires one or if there's a history of substance abuse, child abuse, sexual abuse, or domestic violence.
What's the Difference Between Marital Property and Separate Property?
In general, marital property is everything either partner earned or acquired throughout the marriage. In contrast, separate property belongs only to one spouse. The rules vary by state, but separate property generally includes:
- Property that either spouse owned before the marriage or after a legal separation
- Property acquired during the marriage in one spouse's name and not used for the other spouse's benefit
- Property that both spouses agree to in writing is separate
- Gifts or inheritances received by one spouse during the marriage
- Pension proceeds that vested before marriage
- Certain personal injury awards
What's the Difference Between Community Property and Common Law Property?
Property in a marriage is considered either marital or separate, but a state's marital property ownership system determines who gets what in a divorce. There are two systems: community property and equitable distribution—aka common law.
Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are community property states. All assets and debts acquired during a marriage are joint property in these states and get divided equally if a couple divorces. All other states follow the common law system of property ownership. In these states, any assets and earnings accumulated during marriage are divided "fairly," though not necessarily equally.
The Bottom Line
A divorce can be emotionally and financially draining, whether it's a mutual decision or a surprise move initiated by one spouse. Understanding the steps involved in a divorce can make the process a little easier.
In most cases, it's wise to talk to a divorce attorney to discuss your options and protect your rights. It may also be a good idea to work with a certified divorce financial analyst (CDFA) if you need advice regarding valuing assets and debts, dividing retirement and pension accounts, and the tax implications of alimony and property division.