Divorce Law FAQs

A divorce legally ends your marriage, and the process begins by completing the appropriate paperwork and filing it with the court. Since state laws regulate divorce, it is important to check for local requirements related to filing papers and serving, or notifying, your spouse. An individual may only file for divorce in a state where they reside. Nearly all states require that a person reside in the state for a period of time, six months or a year, before filing for divorce in the state.

A complaint or petition is the document that is filed with the court, beginning the divorce process. By filing this document, you ask the court to officially end your marriage. Complaints refer to parties as "plaintiff" and "defendant." Petitions name the parties "petitioner" and "respondent." The person filing for divorce is either the plaintiff or petitioner.

Next, your spouse must be notified that you have filed for divorce. Having the complaint or petition handed to your spouse in person is the preferred method of service, or delivery. Other forms of service may be permitted, including mailing the document to your spouse.

After your spouse has been served with the complaint or petition, the court begins the process of terminating the marriage. Often, there is a period of waiting time before the divorce is final. These periods vary by state, and some states do not require a wait.

Various factors can affect the divorce process. Some couples work through the major issues involved in divorce, such as children and the division of property, without involving lawyers. Others need the help of an attorney to protect their interests. Mediation and collaborative divorce are options for spouses who may be able to come to an agreement and settle their issues outside court.

Divorce laws vary by state, and the amount of time required to dissolve a marriage can differ depending on your location. For example, most states require you to be a resident for a minimum period of time, which can range from 3 to 12 months, before you can file for divorce there. The proceedings themselves can also vary in length, with uncontested divorces representing perhaps the fastest option, while contentious divorces involving complex marital estates or child custody questions can go on for years. After a ruling is made on the divorce itself, there is generally a waiting period from 0 to 6 months in most states before the divorce becomes final.

Divorce costs can differ significantly across cases and states, and often depend largely on whether the dissolution is contested or uncontested, whether you hire a lawyer, how many issues must be settled, and how long the divorce process takes. On one end of the spectrum, if a couple with few assets and no children agrees to seek an uncontested divorce without the assistance of an attorney, their costs could be limited to court filings and other relatively minor expenses. More complex cases involving contested issues of child custody, spousal support, and property division most likely necessitate the assistance of legal counsel, and can take several months to even years to resolve. With hourly rates averaging from $200-300, legal representation can quickly lead to significant bills. However, handling the legalities yourself could lead to mistakes that are costly and difficult to correct in the long run. Additionally, an attorney may be able to help you explore alternative dispute resolution strategies that can help you and your spouse resolve any contested issues more efficiently, leading to lower costs for all parties.

In most places it is possible for you and your spouse to get a divorce without going to court. One of the most common avenues is divorce mediation. In mediation, a neutral third party meets with the divorcing couple to help them settle any disputed issues, such as child visitation or how to divide certain assets. The mediator can provide some perspective to the parties on how a court might rule on the matters in dispute, and also help them draft a divorce settlement agreement.

In addition, if your divorce is uncontested and you and your spouse do not have children or significant assets, it may be possible to file all the necessary marriage dissolution documents and finalize your divorce without having to appear in court.

In theory, you and your spouse may divorce in either state in which one of you resides. The majority of states require that a spouse reside in the state before filing for divorce in that state. Proof of residency may be required, and some states require six months of residency, while others require a year. If you and your spouse live in different states, you may divorce in either state in which one of you has met the residency requirements before filing. It may be to your advantage to file before your spouse, to save yourself the fees associated with traveling to the other state for court appearances, for example.

It is important to note that a court must have jurisdiction, or authority, over the nonresident spouse in order to make decisions regarding property division, custody, and alimony. The nonresident spouse must be personally served with divorce papers or consent to jurisdiction. Consent includes appearing in court at the appropriate date or signing an affidavit of service, acknowledging receipt of the legal documents. Another method of consent is following the rules of the court, such as abiding by the court-ordered child support.

Though the rules vary by state, both parties are generally required to fully disclose their assets and debts during a divorce that involves disputed issues of property division. In some places, the spouses are also required to disclose the estimated value of non-monetary items. Courts take failure to disclose finances very seriously, and can impose severe penalties on parties who hide assets. For example, a judge can order changes in divorce settlements and award the entirety of the assets you have hidden to your spouse if you intentionally fail to disclose financial information. However, the consequences may not be as severe if the failure was inadvertent.

It is possible to get a default divorce from your spouse if you cannot locate them. Though each state has its own procedures for this kind of dissolution, also referred to as divorce "in absentia," courts will generally require you to have made a diligent and reasonable effort to locate the other party before taking further action. The next step is usually to publish a notice in a newspaper that circulates in the area of your spouse's last known whereabouts, and to keep the notice in the paper for a minimum amount of time in order to provide an opportunity for them to respond. After you fulfill certain additional requirements that may apply in your state, such as filing affidavits regarding your efforts to notify your spouse of the divorce, the court can enter a divorce ruling without your spouse's signature. Working with a lawyer may be advisable under these circumstances, as the requirements for obtaining divorce by publication are complex in many states.

Division of property during divorce varies depending on which state's law applies.

Legal separation effectively ends a relationship, and it is a judicially recognized separation between spouses. But the marriage is intact, and the spouses cannot remarry or enter into a domestic partnership with others. In contrast, a couple seeking a divorce asks the court to dissolve the marriage, most often based on the grounds that the parties have irreconcilable differences that have resulted in the breakdown of the marriage.

A legal separation involves a court order setting forth the rights and duties of the couple while they are still married but living apart. Remaining legally married may prove advantageous for personal or financial reasons, and a court will divide property and determine alimony, child custody, and child support. Similarly, in divorce proceedings, the court also decides these issues. In a legal separation, this is called separate maintenance.

In some states, a trial separation in which the couple sees whether they want to pursue a legal separation or divorce does not result in assets or debts being split. They remain marital property. A trial separation has no real legal effect and is not a legal separation.

Other states interpret living apart as effectively concluding the accumulation of marital property. In other words, debts or assets that arise during this period would not be marital property. Finally, permanent separation typically results in the court viewing property as separate property of that acquiring spouse. Permanent separation may follow a trial separation or begin immediately when the couple lives apart.

An annulment of marriage is a legal decree that a marriage is null and void. Annulments are granted when a court makes a finding that a marriage is invalid. While a divorce ends a legally valid marriage, an annulment treats the marriage as if it never existed. The end result of an annulment is the same as a divorce – the parties are single and may remarry or enter into a domestic partnership with another person. Additionally, as with divorce, the court presiding over an annulment proceeding may determine issues of child custody, child support, alimony, and division of assets.

The determination of alimony (also known as spousal support or maintenance) depends on a number of factors, including the length of marriage and the earning capacity of each spouse.

Changing one's name after a divorce is typically a straightforward process. Changing a child's name after a divorce, on the other hand, may be more complicated, depending on the child's relationship with the other parent.

Prenuptial agreements can help couples with significant income or wealth disparities avoid bitter disputes if the marriage ends.

Season tickets may be shared, bought out, or sold during a divorce. While divorcing spouses may agree to share season tickets by each taking one seat, this is likely not the most desirable option. Instead, they might agree (in writing) to alternate games or allow one ex-spouse to use the tickets for the first half of the season and the other for the second half. Divorcing spouses could approximate the value of the tickets and have one spouse buy the other out of their share, or they could sell the tickets to a third party and split the return.

Some airlines offer a process for dividing airline miles upon divorce, but in many cases divorcing spouses will need to calculate the value of the miles and allow one spouse to buy the other out of their share. Valuation could be based on an array of considerations, such as the dollar amount for which the miles may be cashed in or the approximate amount of money that each spouse would realistically save on flights before the miles ran out or expired.

Some credit card point programs allow transfers of points between cards, so divorcing spouses could presumably divide the points between their respective personal cards (and share any transfer fee). Points may also be split by approximating their monetary value and having one spouse buy the other out of their share. Alternatively, points could be used to pay down the balance of the card, thus reducing or eliminating the amount of joint debt.

Memberships, such as country club memberships, may be creatively divided in a divorce. The membership agreement may dictate what happens to membership upon divorce. Sometimes, both divorcing spouses will be able to maintain their membership and may need to agree (in writing) on specific uses, such as whether ex-spouses will alternate attendance at club events. If a membership is transferable, it might be sold and the proceeds split between the spouses. If the membership is not transferable, and both spouses cannot or do not want to maintain membership, one spouse may buy the other out of their share for its approximate value (including any prepayments). However, a court may decline to divide a club membership if it cannot be valued.

It is rare for a judge to order an individual to pay their ex-spouse’s attorneys’ fees. However, a court may award an ex-spouse attorneys’ fees if the other acted in bad faith during the divorce process. This might include hiding assets or intentionally dragging out the process. A court may also consider awarding attorneys’ fees if there is a great financial disparity between the parties or if one party cannot reasonably afford their legal fees.