DMK has put together a general process of events, types of divorce and legal guide to provide an idea of what to expect when you divorce.
Divorce laws are state specific
While we can give you general facts about the divorce process, we cannot provide a specific schedule of divorce since each state and circuit court has its own guidelines.
It's best to speak with an attorney in your residing state for guidance relevant to specific laws and the local process of divorce before you separate. If you prefer pro se representation (meaning to represent yourself), you should still have a firm understanding of your state's divorce laws. For information about the process of divorce in your county, you may contact the court clerk at the local (family) courthouse for information. The law may seem straight forward, but interpreting it is complicated. Many lawyers offer a free initial consultation.
Before you separate
There are some important things to know before you separate. These are not applicable to every circumstance or state nor is this list inclusive of every pre-separation to-do. This list is meant to provide you with some foreknowledge of possibilities to confirm or exclude before you leave.
- When possible, request your spouse provide written permission for you to leave and permission to remove marital property (itemized) from the home. If this cannot be done, speak with a legal professional for guidance before leaving.
- Take written or video inventory (date stamped when possible) of personal property (e.g., bulky items like furnishings, clothing, and items of sentimental value) left in the home.
- Do not take property that results in your spouse's inability to maintain his/her residence. You should take reasonable property for you to establish a separate residence.
- Take all meaningful, sentimental property (pictures, awards, souvenirs) and copies of all financial and otherwise important documents.
- Remove your name from utility accounts.
- It's important to speak with a legal advisor about direct deposits, establishing a separate bank account and before closing any mutual credit cards.
State Laws
There are three critical issues to know regarding state laws.
- If applicable, get information related to your state's guidelines for child support, child custody laws and a parenting plan.
- Some states require a separation period and/or couples therapy before the process can be completed. Make sure you understand what qualifies for separation during that period.
- Find out if your state is a Community Property or Equitable Distribution state.
His and Her Guide
Each spouse has quite a distinct set of concerns when divorcing. A good place to start in your legal process is to refer to our His and Hers Divorce Planners located in our DMK Divorce Workshop 2020. This will provide you with specific details and items needed for a typical divorce.
Legal Representation
It's not easy to cope with the many emotions and concerns when in the initial stages of divorce. Choosing an attorney can seem complicated to the average legal consumer.
- Where do you start?
- How do you know which attorney is best for you?
- What should you have prepared before hiring someone?
It helps to have an idea of the process of hiring an attorney. Refer to our Legal Guide for the complete process of hiring legal representation.
Who files for divorce?
The spouse who initiates the divorce will sign and file a divorce petition for dissolution of the marriage. The other spouse will then be the respondent and depending on the residing state, have a specified period to respond.
If you share an attorney to complete the paperwork, know that the attorney will only represent one party. Some select the spouse who initiates contact with the attorney first to be the petitioner and the client for which they technically represent regardless of if it was the spouse who initiated the divorce. This means the couple technically does not share an attorney. The attorney represents one spouse only.
In some states, spouses can file as joint petitioners. Contact the court clerk at your county courthouse to determine if you live in one of these states.
Legal Separation
Upon separating, regardless of if it is legally required in the couple's state, a legal separation agreement can be established regarding temporary support, custody and living arrangements. Often, this is the basis from which a permanent divorce settlement is created. However, like a "practice run" it will likely be modified to create the best, final divorce settlement agreement as part of the Final Judgement of Divorce. A separation agreement is indefinite, but neither spouse can remarry until a legal dissolution of marriage is established in a judgement.
Develop Settlement Agreements
An agreed upon set of terms of the divorce is commonly referred to as a Settlement Agreement or Separation Agreement. In some states, the Parenting Plan (detailing custody and child support, among other matters pertaining to the marital children) is also part of the Settlement Agreement, in others it is a separate document agreed upon by both parties to be approved by a judge.
If fully executed by both parties (preferably notarized), the Settlement Agreement is a contract until approved by a judge and made part of the Final Judgement of Divorce. Once it becomes part of the judgement, it is enforced by the order of the court. This means you may be found in contempt if you fail to adhere to those terms. In most cases those terms are specific to custody and/or support.
It's financially prudent if both spouses negotiate the terms of the settlement with little to no legal assistance to keep costs down and expedite the overall process. The couple should still have a strong understanding of the laws and their rights in their state before negotiating their settlement. It's best for each spouse to have at least consulted first with a local attorney regarding the situation to negotiate the best settlement, but not required.
Trial
If the couple cannot come to an agreement on all or some terms of the divorce (e.g., distribution of assets and debts, maintenance, custody, child support, etc.) then the case will go before a judge. In many states, the judge will either recommend or order the couple to attempt mediation first.
If mediation fails or isn't ordered and/or attempted, each spouse will usually has an attorney prepare their case to include legal arguments, evidence, and witnesses on their client's behalf. The judge will later issue a judgement based on all that was presented by both parties and state laws. The court has a great deal of discretion when deciding the outcome and the backlog of cases can delay the case from being heard for months. So, the choice to go to trial can be costly, time consuming and risky.
Only a licensed local attorney will be able to advise his/her client on the various possibilities based on the laws and case. But still there is no guarantee. This may be why the vast majority of cases are settled outside of court in the U.S. (Approx. 95%).
Mediation
A mediator is often used to help the couple negotiate their own settlement when they cannot do so on their own or with their attorneys. This may be done to avoid a trial or as a requirement of the court. Mediation often saves time and money for both parties. However, mediators provide no legal advice, make no legal decisions, and do not take sides in the couple's negotiation of their settlement.
Finalization of Divorce
Once the couple decides on all terms of the agreement, one or both attorneys could complete the legal paperwork and file for divorce with the court (based on the couple's negotiated settlement). Both spouses would sign the paperwork outside of court, following any required (pre-divorce) waiting or separation periods. There would not be a trial.
Once the judge grants it and the judgement is entered into court records the divorce will then be completed. There may be a waiting period of 30 days or more following the divorce. So, avoid new marriages until such a period expires. Consult the courts or legal representatives for more information.
The total process of an uncontested divorce usually takes about 90 to 120 days. Most divorces in the United States are completed within one year. However, each situation is different. While some divorces can be completed without the help of an attorney, legal representation is recommended for most.
Things don't always go as planned
DMK does not provide legal advice (nor do the majority of resources found online)
Know that every state has unique laws and guidelines that are not completely anticipated in this article. Also, every couple has a unique set of circumstances that are affected by those laws. This information is meant to provide an idea of a general process of divorce but is in no way inclusive of every scenario, law, legal process, or guideline. Use this information (and any other reliable information found online) as a part of your preliminary preparation for your divorce journey rather than a specific example of your anticipated legal divorce.
Again, contact a local legal professional and/or local family courts (or local courts) for specific information relevant to the laws in your state and legal process in your specific county for which you reside, expect to file, and complete your divorce.
Annulment
Some couples may choose to annul their marriage rather than divorce. Legal annulments establish the marriage never existed while a divorce recognizes it existed but has been dissolved. Usually, the marriage is a short duration in months rather than years. There will be a requirement in most states for a compelling argument to pursue an annulment. Misrepresentation, concealment, or failure to consummate are some common reasons for annulment. Speak with your attorney regarding the laws of your state and requirements to annul a marriage.
Religious annulment
Do not confuse a legal annulment with a religious one. There may still be requirements of your Church (e.g., Catholic Church) to annul a marriage beyond legal annulment. The most common purpose to do so is for either spouse to remarry in the Church. Refer to our DMK article Can my marriage be annulled in the Catholic Church? Also, refer to our section Turning to Faith for common responses or requirements of Churches, religions or faiths regarding separation or divorce.
Types of Divorce
- Divorce with Grounds
- No-Fault Divorce
- Summary
- Uncontested
Information related to each type of divorce is listed below. Refer to your attorney with specific questions related to your circumstances and state laws to determine the best type of divorce for you.
No-Fault Divorce and Divorce with Grounds
No-fault divorce refers to a legal dissolution of marriage establishing no wrongdoing from either spouse. All states offer no-fault options with many states still allowing other (optional) grounds for divorce or evidence of fault presented throughout the process when determining support and the division of debts and assets.
However, seventeen states and the District of Columbia only offer no-fault divorces. They are considered "true no-fault states" because their laws do not provide an option for ascertaining fault for either spouse. This divorce simply requires you to assert separation, incompatibility, or irreconcilable differences/irretrievable breakdown of marriage. This is considered a no-blame divorce where both spouses are shown to have no wrongdoing.
The petitioner does not need to provide evidence that the defendant has breached the marital contract. Many times, no-fault divorces are chosen by couples that wish to keep the details of their divorce private.
Unless you file for a no-fault divorce, you will need to find out if your state is a "true" no-fault state or a state that offers options for filing with grounds for divorce. In addition to no-fault options, most states will also have distinct options for filing for divorce with specific grounds (blame). The options for grounds for divorce vary in each state (when offered), so refer to your legal representative for guidance.
Grounds for Divorce
Divorce with Fault Based Grounds
All States except "True" No-Fault States
The most common fault grounds for divorce include adultery, cruelty, unreasonable behavior, imprisonment, abandonment, mental illness, criminal conviction, abuse. Some states also include drug abuse, impotency, and religious reasons. There are at least eleven fault grounds in the U.S. so consult an attorney for grounds available in your state. Regardless of if your state offers the opportunity to file with grounds, many couples choose no-fault divorces which are available in all states. They are usually faster and have fewer legal expenses since a large percentage of no-fault divorces do not go to court.
No-Fault Divorce
"True" No-Fault States
Some states have a wider range of options while seventeen states and the District of Columbia are considered "true" no-fault states. This means they do not allow divorces based on fault or blame from either spouse when filing for divorce.
Hybrid/Separation Based Divorce
No-Fault States and States offering Fault Based Divorce
Some states (including some no-fault states) offer a combination of fault and no-fault divorces. It requires the couple to live separate and apart for a specified period. The period is based on the requirements of the state.
No-fault means neither spouse must prove anything except one ground for divorce, "irretrievable breakdown of marriage" (irreconcilable differences). In no-fault states that also offer fault-based divorce, other grounds can be filed as the reason for divorce. Some of these may include adultery, desertion, bigamy, etc.
Choosing to file for a ground-based divorce may lead to a longer process and higher legal and court fees. The burden of proof is on the petitioner in most states.
Some spouses choose a no-fault divorce but still refer and present evidence of the other spouse's behavior and/or actions that could be grounds for divorce in settlement negotiations, hearings, and trial (when applicable).
Summary
Not available in all states. This type of divorce is best suited for short marriages where there are limited marital assets or reasons for support. This is not ideal for marriages where there are children and consequently a need to negotiate the terms of child support and custody. Referred in some states as a Joint Petition for Summary Dissolution of Marriage. Often a DIY divorce, most couples obtain the paperwork from a local family court for this type of divorce.
Uncontested
The most common type of divorce. It's different from a no-fault divorce, which refers to the grounds for divorce. An uncontested divorce refers to the agreement regarding the grounds.
Some no-fault divorce's may still be contested in that one spouse disagrees that the marriage is irretrievably broken. In many cases, no-fault divorces are uncontested since both agree to the desire for a divorce and/or many individuals recognize that the likelihood of permanently stopping the legal process of divorce based on such a disagreement is uncommon.
Finally, when neither spouse has presented grounds that could affect the outcome of the case based on one spouse's negligence of the marital contract, contesting the divorce may not provide a significant legal advantage thus failing to make the decision to do so worth the time, money, and frustration.
Uncontested divorces typically take less time and money to complete.
Methods of Divorce
There are many ways to process divorce (legal methods to establish all the terms within the divorce judgement). We have listed the most common methods below. Upon establishing the type of divorce best suited for you and your spouse, you will decide how you wish to process it. Remember, each state has different laws and options available. Use our guide so that you better understand the options offered in your state when presented by your attorney or family court.
- Mediated (as a process to determine terms)
- Collaborative
- Arbitrated
- Litigated
- D-I-Y
Refer to our Methods of Divorce page for explanation of each of the above listed ways to process divorce.
Post-Divorce Afterthoughts
It is complicated and expensive to appeal a Final Judgement of Divorce (Divorce Decree) and rarely successful. There must be compelling circumstances specific to legal error, abuse of discretion and/or fraud.
Modifications can also be costly and require a convincing and consistent change of circumstance (e.g., loss of job, job transfer, medical event) as a reason to seek the modification. However, if both spouses agree to the modification (change in terms of the original court order), it may be straight forward, but still requiring a judge to approve before being finalized.
It will be more difficult to get a modification if you and your spouse approved a Settlement Agreement as part of your original court order and the Petition to Modify comes shortly after the divorce was finalized.
In the case of a Settlement Agreement, the judge will be more likely to consider the petition if there has been a reasonable period between the original court order and the modification, since a substantial change in your circumstances is more likely to occur over a longer period rather than a few months following the divorce.
As always, consult a local attorney for specifics regarding laws in your state as they apply to your circumstances. It's important you have a good understanding of your case, the laws in your state and the process you wish to take to permanently dissolve your marriage and establish a settlement agreement to reduce concerns following the court order.
For more information on the legal aspects of divorce consider these DMK Legal Sections:
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