Divorce and Family Law FAQs

How do I file for divorce?

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.

Read more about divorce.

How long does the divorce process take?

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.

Read more about divorce.

How much does divorce cost?

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.

Read more about divorce.

Is there a way to get divorced without going to court?

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, and one that is mandated by law in many states, 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.

Read more about divorce mediation.

If my spouse and I live in different states, where can we get a divorce?

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.

Read more about divorce.

Do I have to disclose all of my finances during divorce?

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.

Read more about property division.

Can I get a divorce if I don’t know where my spouse is?

It is possible to divorce 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.

Read more about divorce.

How do courts divide property in divorce?

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

Read more about division of property.

What is the difference between legal separation and divorce?

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.

Read more about divorce.

Will I have to pay alimony/spousal support?

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.

Read more about alimony/spousal support.

Can I get my maiden name back?

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.

Read more about name changes.

Should my future spouse and I have a prenuptial agreement?

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

Read more about prenuptial agreements.

Child Custody, Visitation, and Support Answers

How is child custody decided? How can I get custody of my child?

Child custody includes the physical and legal responsibilities of parenting. The court decides both components, as well as whether one parent should have sole custody of the children, or whether the parents should share jointly in custody of the children. The presumption is that it is best for the child to continue frequent contact with both parents following the divorce or legal separation.

Physical custody refers to where the child lives, spending time solely with one parent or splitting time between two parents. Often, if one parent has sole physical custody rights, the other parent receives visitation rights. Legal custody includes the right to make decisions that affect the child, such as educational decisions, religious decisions, and medical treatment decisions. Typically, both parents are awarded legal custody, such that they share in the decisions that affect the daily life of the child.

The best interests of the child guide the court's decision concerning custody arrangements. Factors include the parents' physical and mental health, their ability to provide for the child's basic needs, and their lifestyle. The court also looks at the emotional and educational needs of the child. Many times, the court considers the child's custody preference.

Since the child's best interests dictate custody determinations, a parent seeking custody should seek to provide a stable, caring home, anticipating the needs of the child on an emotional, educational, and overall level. Mistreating the child, or abusing drugs or alcohol, may affect the court's decision to grant the other parent custody. However, the court may award sole physical custody to one parent while allowing the other parent substantial visitation rights as well as legal custody, thereby sharing the parenting of the child.

Read more about custody.

If I have custody of my children, can I move out of state with them? What if my ex tries to move my children out of state?

Often, there are travel restrictions placed on divorced parents who have custody of their children. In some cases, the final judgment in your divorce proceeding may forbid you to take the child outside a certain geographical distance from where you were living when you divorced.

Read more about relocation.

How is visitation decided?

Visitation is part of a parenting plan, and if the two parents can agree on a plan that includes a visitation schedule, they may submit it to the court for approval. Providing that it is reasonable and reflects the court's understanding of the parenting arrangement, it will be approved and become an enforceable court order. Under these circumstances, the two parents have great sway over the arrangement.

The details of a visitation and parenting plan must include emergency situations, holidays, and school vacation schedules. The agreement may include a provision stating that as long as changes are written and approved by both parents, they are to be enforced.

For noncustodial parents, courts often order reasonable visitation. This means that the parents can decide the time and place of visitation, according to their schedules. This approach requires that parents cooperate, and if this schedule does not work, the alternative is a fixed schedule set by the court. The advantage to a fixed schedule is that the child experiences a predictable schedule.

Read more about visitation.

What should I do if my ex isn’t following the court’s visitation or custody orders?

A former spouse may be held in contempt of court if he or she does not follow the court's visitation or custody orders.

Read more about contempt of court.

How does my military service affect my child custody and visitation rights?

Some states do not have laws enacted to specifically address military service and child custody and visitation rights. Others have enacted laws that protect parents while deployed, so that they are not penalized for their military service, and so that they can regain custody upon their return.

The difficulties faced by parents who temporarily give up custody of children or forgo visitation because of military service are considerable, and it is important to remember that custody orders are never permanent. If a substantial change in circumstances occurs, such as a deployment for a year or longer to an overseas location, you can work with the court to modify an order.

If you anticipate changes to your custody and visitation rights, you may want to consider including a provision in your parenting agreement relating to your potential relocation.

Read more about custody and visitation.

Can I request a paternity test for my child?

Typically, if parentage has not been established, parents can ask for a paternity test to find out if the person assumed to be the father of the child is in fact the child's biological father. However, if there is already a court order in place that says, for example, someone is the child's father, it may be too late to ask for a paternity test. The law, alternatively, may declare someone the legal father, even if genetic tests say that he is not the biological father.

In most states, a parent can file an action asking for a determination of paternity. If either parent orders genetic testing, the court will use the results in its paternity determination. The paternity test will show if the man is the biological father of the child. The establishment of paternity affects child support and custody issues.

Read more about paternity.

Can my child choose whether he or she lives with me or with my ex?

Legally, your child does not have a right to decide which parent to live with. The court may, if your child is of an appropriate age, consider the child's preference in physical custody arrangements. Many states do not impose a specific age at which the court must consider the child's wishes. Often, even young children bonded to one parent can express a desire to live with that parent.

Generally, if you and your ex agree on your child's preferences, most likely they can be implemented. If there is not an agreement, it becomes more complicated. Ultimately, the judge decides who is going to get the kids. Even in circumstances in which the judge is required by state law to consider the child's wishes, this does not mean that the judge must grant the child's preference.

Read more about custody.

What legal rights do stepparents have?

Generally, the relationship between stepparent and stepchild does not provide rights or impose duties. Some stepparents legally adopt their stepchildren and are treated as biological parents under the law. But generally there is a lack of legal recognition of the stepparent's rights, especially concerning custody and visitation. This is because a child can only have two legal parents. Stepparent adoption is one method of ensuring rights, and it can sometimes be complicated if one of the birth parents refuses to consent to the adoption.

Some states have enacted specific laws dealing with the duty of a stepparent's support obligations to a child during a marriage. Other states hold the stepparent accountable, and if the stepparent has voluntarily treated the stepchild as a member of the family, they may be obligated to maintain and support the child.

Read more about stepparent's rights.

How is child support calculated?

Child support is the amount of money that a parent pays monthly to cover costs of support for the child and the child's living expenses. Parents may agree on child support, and if not, the judge will decide the child support based on a guidelines calculation. Different states use different guideline models.

A federal law, the Child Support Enforcement Act, mandates that each state maintain their own guidelines to calculate child support, based on parents' incomes and expenses. Guidelines vary between states, as does the ability of the judge to veer from the guidelines when ordering child support.

Factors considered in child support guideline models may include the parents' earnings or potential earnings, the number of children the parents have together, health insurance expenses, and the costs of daycare. Parents may be required to share costs for childcare in order for the parents to work or to receive training. The child's educational needs and health care expenses are also typically shared costs.

The amount of time each parent shares with the child affects their child support.

Generally, child support payments decrease as time share increases.

In determining child support, courts look at a parent's net disposable income after state and federal taxes and other deductions. Parents often complete a financial statement, helping the court understand the complete financial situation before ordering child support.

Read more about child support.

How long do I have to pay child support?

In most states, your obligation to pay child support concludes when the child reaches legal adulthood, which is generally 18 years old in this context, but in some places can be 21. There are certain exceptions that may require you to provide support beyond this age, such as when a child attends college or has special needs. It is important to know that your obligation to pay child support does not end automatically, even when a child has reached the age of majority, meaning that you have to make an affirmative request to the court to terminate this responsibility.

Read more about child support.

How do I request a modification to child support?

If you and your former spouse agree on a child support modification, you can generally file a request with the court to approve the new amount, which must still be sufficient to meet the child's needs under state law. If the modification is contested, you will likely need to make a showing to the court that a major life event or other change in circumstances necessitates altering the amount you are receiving or paying. Qualifying events may include the loss of a job, a medical emergency involving the child, remarriage of the other parent resulting in a significant income increase, and/or a parent becoming disabled. The court will decide if the modification should be temporary or permanent, depending on the situation. It is important to keep in mind that some states limit how many times you can modify child support within a given time frame, so it is advisable to consider the possibility and timing of any future changes before making a formal request.

Read more about modifying final judgments.

Do I have a legal right to see my grandchildren?

Grandparents are generally not afforded the same rights to children as parents are, but they can obtain custody in some limited situations.

Read more about grandparents' rights of custody and visitation.