Divorce Law

By Maedot Teka, Esq. | Reviewed by Nicole Prebeck, Esq.

Last updated March 25, 2023

Everyone hopes their marriage will last forever. But the sad truth is that many marriages don’t make it that long and end in divorce. In fact, some engagements don’t even make it to the wedding.

This page gives a broad overview of divorce. It also links to more detailed articles that can help you answer specific questions. Divorce laws vary by state. So, you should consult a divorce expert in a city near you to give you the best advice about your circumstances.

The Divorce Process

A divorce doesn’t only mean that your marriage is over. A divorce case, which generally is filed in a family court, also means resolving issues with your spouse such as:

A dissolution of marriage (divorce) isn’t inevitable. But if it becomes necessary, planning for the future by using a prenuptial agreement (“prenup“) can make the process easier.

Even if you don’t have a prenup, you can make the process less ugly by using divorce mediation or collaborative divorce. Both mediation and collaborative divorce gives you more control over a final court order regarding how your property is divided and/or custody and visitation of your minor children with you ex-spouse.

Generally, using mediation or collaborative processes will result in an “uncontested divorce,” which means you and your soon to be ex-spouse have agreed on all issues within your divorce by entering into a settlement agreement and you will not have to go to a trial. It is best to seek legal advice to determine if mediation or collaborative divorce is the best type of divorce for you.

Divorce proceedings start when one spouse files a petition asking the court to end the marriage. You should file this petition in the county where you or your spouse resides. There will be a filing fee (which can be waived if you qualify) paid to the court.

Be sure to check your state’s law on residency requirements, as all states require you or your spouse to reside in the state within a certain timeframe before you can file for divorce. It would be best if you also thought about the tax implications related to when you decide to file for divorce.

After filing, you must serve the divorce papers to your spouse (who will be the defendant/respondent and you are the plaintiff/petitioner). Service means delivering the petition (document that starts the divorce action) to the other party as the law requires. You also need to submit proof of service to the court.

An alternative to service by an agent authorized to serve legal documents by your state, your spouse may agree to sign a waiver of service. Usually a waiver only acknowledges that they (your spouse) received the dissolution of marriage/divorce petition and they do not contest the court’s jurisdiction to preside over the divorce.

The requirements for serving legal documents vary by state. So, research your state’s laws to determine what applies to you.

After your spouse has been served or they sign the waiver, most states have a waiting period before a judge can sign off a divorce judgment. This period can be longer when custody of children is involved. But during this period of time can allow you and your spouse to talk about a parenting plan regarding custody and how you all will share time with your children.

Your Spouse’s Response

A divorce is either contested or uncontested. It often takes longer to get divorced if your spouse contests it.

After receiving your divorce papers, your spouse must file a response. If they fail to do so within the specified timeframe as required by your state, you can request the court to enter a default judgment. A default judgment means the court assumes your spouse agrees to all the terms of your divorce filing.

Even your spouse files a response, they may not contest certain things like division of property, which may make the process less stressful.

The response will show whether your spouse wants to contest the divorce or let it continue uncontested. Not all divorce actions are contested divorces. In fact, many people end up resolving most, if not all, issues in a divorce action in a settlement agreement.

Fault vs. No-Fault Divorces

In the past, states required you to prove fault, such as infidelity, if you wanted to divorce. But all states now offer some form of “no-fault” divorce model.

The legally acceptable grounds for fault vary from state to state. Whether your spouse can stop your divorce depends on whether you file for a fault or a no-fault divorce.

Negotiating a Settlement

If you and your spouse can’t agree on the divorce terms, you will need to negotiate an agreement. The negotiation may include issues such as the following:

Child support
Custody
Dividing your marital assets

If you and your spouse cannot agree, the court may schedule a mediation session. During the mediation session, a neutral third party will try to help you and your spouse reach a settlement agreement.

Trial and Judgment

If you still cannot agree on the terms of the divorce, your divorce will go to trial. But most divorces don’t go to trial for several reasons, including:

The expense of a trial
The possibility you and your spouse can lose decision-making power
A trial is very time-consuming

Whether you reached a settlement or went to trial, the divorce becomes final when the judge signs the divorce judgment. This judgment dissolves the marriage and outlines the specifics of the terms of the divorce.

Do I Need an Attorney in a Divorce?

Many people find it helpful to go through the divorce process with an experienced divorce attorney. An attorney can level the playing field if your spouse has an attorney by ensuring you have sound legal advice and legal information. A divorce attorney can also protect your interests even if you are considering settling rather than going to trial.

While some states may have divorce forms you can access online, they may not be appropriate in all situations and an experienced attorney can assist and draft appropriate documents. Knowing your legal rights is always a good idea when going through a divorce.

Dividing Your Property

How a court will divide marital property depends on whether you live in a community property or an equitable distribution state.

Dividing your house or other real estate is a tricky issue you and your spouse must navigate. You’ll also have to divide your health savings account, if you have one.

You’ll likely have to disclose your finances in court or settlement discussions when dividing property. Debt or bankruptcy can complicate the process.

The court often cannot divide the property you and your spouse individually owned before the marriage. Property that you owned before the wedding is yours. Likewise, property your spouse owned before the marriage is theirs.

Other types of separate property not divisible by the court include the following:

Inheritances given to only one spouse
Gifts
Personal injury compensation

Dividing marital property can be complicated. It often requires the work of your family law attorney and accountants.

Alimony or Spousal Support

The court may also order alimony payments, also known as spousal support, as part of the final divorce order. A court often orders alimony when one spouse makes much more money than the other. The court may order it for a limited period or indefinitely.

When determining whether to award alimony, judges consider many factors. One example is whether you or your spouse gave up a career to stay home and care for your children.

Contacting an experienced family law attorney for legal advice about spousal support could be beneficial—whether you are seeking support or concerned you may have to pay support.

Child Custody, Child Support, and Visitation

Often, the most emotional aspect of a divorce that a court must resolve involves custody of children and visitation. Legal custody consists of each parent’s right to make important decisions for their children. Physical custody determines who the children live with. The noncustodial parent often receives visitation time with their children. A judge will also determine child support, and which parent pays child support, during the divorce process.

After Your Divorce

There are several steps you may want or need to take after your divorce, such as changing your last name, including obtaining a new driver’s license and social security card and updating your beneficiary designations.

A divorce decree is generally final. However, when dealing with child related issues, such as child custody and parenting time, there are ways you can try to have it changed if your situation changes, such as moving to another state with your children.

Speak to an Experienced Divorce Attorney Today

You deserve dedicated, personal focus on your rights and unique situation if you’re going through a divorce. So, take the first step and contact a local divorce attorney to discuss your divorce. An experienced divorce lawyer can help you understand your legal rights, including answering what may be frequently asked questions by those going through a divorce in your state. They can also explain the law and represent you in court if necessary.

Additional Divorce Articles

State Divorce Articles

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