How to file for divorce and the differences in divorce laws by state


How to file for divorceWith around every third person in the US being a divorcee, you’re not alone in your search for separation and freedom. The dissolution of marriage is usually a painful and bitter experience for all parties involved, however divorce laws have been established by all the states of the US in attempt to make the process as fair and easy as possible. Unfortunately, there can be significant differences in the legalities and requirements of each state.

Each state has it’s own divorce laws and whilst there are similarities, laws and processes differ in one form or another. The primary term to understand is that of “contested” and “uncontested” divorces.

Uncontested and contested divorce

According to the divorce laws, divorces are divided into two types:

  1. Uncontested divorce

    If both of the parties are going for divorce with mutual agreement regarding all the issues, it will be termed as an uncontested divorce. Since there are no issues that need debating, an uncontested divorce is mostly settled in an out-of-court settlement. Every divorce is difficult, but an uncontested divorce is by far the easiest (and cheapest).

  2. Contested divorce

    If both of the parties are unable to agree upon the terms and conditions of the divorce it will be regarded as a contested divorce.  Division of the assets, debt allocation, alimony, child custody and spousal support are some of the commonly disputed issues. Each state has its own set of divorce laws to handle these issues and often you will require a specialist divorce lawyer to assist. Two of the more common are;

    1. Counseling and mediation: Usually the spouses, who have disputes, are asked to go for counseling and mediation in order to help them meet an agreement. But since all the states do not pay for these counseling sessions, these can prove to be financially straining for both of the parties.
    2. Alternative dispute (Magistrates or Master): In some cases, divorce laws might require you to go for an alternative dispute mechanism commonly known as magistrates and masters. In this case a junior judge or divorce lawyer will hear your case and make their recommendations. The judge then makes the decision in light of those recommendations. This can be a lengthly and costly process (one that is actually used to reduce cost by not requiring a full court hearing for the disagreement).

A 10-step overview of how to file for divorce

Below is a high-level 10-step overview of the general process on how to file for divorce. Scroll down for information on your individual state laws.

  1. Firstly, decide if you wish to file a “fault” or “no fault” divorce.

    In terms of grounds for divorce, all state’s currently have a “no fault” option and some have a “fault” based option (common reasons include adultery, abuse and abandonment). A “no fault” divorce is most common, and if you’re looking for a cheap divorce, it’s the way to go. If you are filing for a “fault” based divorce it is more likely your case will be complicated and you should consult with a divorce attorney who will talk you through the process and specific legalities in your state. There is also a third option available in some states which is living separate and apart for a length of time. The time requirements range significantly (from two months in Kentucky to two years in Hawaii!). You can read more about general grounds for divorce in Wikipedia.

  2. Decide if you and your spouse can agree on all terms of the divorce.

    Assuming the grounds are “no fault” (basically your marriage has deteriorated – it was no one’s fault in particular), if you and your spouse can agree on all terms of the divorce, this will be an “uncontested divorce” and one which you may even be able to file yourself or through an online service.

    Again, if you’re looking for a cheap divorce, an uncontested divorce is the way to go — any form of “contested divorce” will be more expensive. If there are any disagreements you will need to either work them out between you, speak to a mediator or a divorce attorney. Working them out between you is obviously the least expensive, however mediators and counseling can save you a lot of money by helping you to get to an agreement without the need for a divorce lawyer to intervene (note that a divorce lawyer can also be very useful — and inexpensive — even when you do agree!). If you truly can’t agree on the terms with your spouse then a cheap divorce is unlikely. Your divorce will be a contested divorce, will involve court time and likely divorce lawyers.

  3. Think about your Settlement Agreement.

    The terms you agree with your spouse will need to be formalised into a “Settlement Agreement”. These include but are not limited to the division of property, assets/debts, maintenance (aka alimony or spousal support), child custody and support, pets, legal fees, inheritance. This is a substantial document that will need to be signed by both spouses in the presence of a notary (witness). Note that this does not need to be completed before you file for divorce, however if you and your spouse are in agreement it is good to get this out in the open at an early stage. It is recommended that you get the final document checked by a divorce lawyer.

  4. Begin gathering all “life” documentation.

    This is literally everything you can think of; property, finances, pensions, certified marriage certificate and birth certificates for any children. Again, these are not required prior to filing, however it will be beneficial for you to start early. A more thorough checklist is available here and your local clerk can provide more details.

  5. Read up on divorce laws in your state.

    Depending on where you file for divorce, the process, requirements and timescale for your divorce will differ. If you and your spouse are separated and living in different states it is worth reviewing the differences between the divorce laws in each state and attempting to understand them before speaking to a divorce lawyer. If you have the option of filing in more than one state, you may find that “State A” is more suitable to your requirements than “State B”.

  6. Decide where and how to file for divorce.

    Once you have decided on the state in which you wish to file for divorce, the next stage is to decide exactly where to file and how to do it. Some states are easier than others. Call your county clerk – they can help confirm you meet their requirements, which court to file in and the exact paperwork that needs to be completed. You can then decide if you wish to take this on yourself as a DIY divorce or gain assistance from one of the many online divorce services that will assist you for a nominal fee. Even a local divorce lawyer can be surprisingly low-cost if you and your spouse are agreeable and the divorce is uncontested (and they often offer a free consultation).

  7. Complete the divorce paperwork.

    Be sure to sign it in front of a notary and create two copies – one for you and one for your spouse (you will file the original with the clerk).

  8. File the divorce papers and pay the fee.

    The orignal papers must be filed with the clerk. You should be aware of the fee as you will have already spoken to the clerk or have been provided this information by your online divorce assistant or attorney (the fee varies not only from state-to-state, but from county-to-county!). The clerk will inform you of the next steps and how arrange for service of the papers upon your spouse.

  9. Complete the settlement agreement and additional paperwork.

    Depending on your situation, there may be more papers to complete. However as a minimum, you will require your settlement agreement to be signed by both parties and witnessed. A date will then be provided for your hearing. Depending on your situation and state, you may or may not be required to attend court.

  10. Gain a certified copy of your divorce decree and a certificate of divorce.

    Once the judge grants your divorce or dissolution of marriage, be sure to get certified copies of the “divorce decree” from the county clerk’s office. The divorce “decree” is the order that the court/judge has finalised in the dissolution of your marriage (divorce). It is a substantial legal document will include all the details that the judge has signed off on (much of which is in your divorce settlement) and must now be obeyed by you and your ex. Be sure to check this document and ensure everything is as you expect – if not, speak to your lawyer immediately. A divorce certificate is different to a decree; it is a short certificate much like a birth certificate. You can get certified copies for a few dollars and they are worth having as may be required for drivers licence, passports etc.

That is a very high level overview of how to file for an uncontested divorce. Contested divorces and fault divorces follow a similar process however they are much more complex due to the disagreements that need to be resolved either directly between spouses, through mediators, attorneys &/or through a court case.

Throughout the United States, divorce laws vary depending on where you live and therefore how to file for divorce can differ from state to state. Many laws are similar, however there can also be big differences in what you can and cannot do alongside timescale and waiting periods.

Divorce lawyers near me

Select your state (or the state in which you which to file for divorce) from the list below for information on your state and divorce lawyers in your local area.

What are the differences in state divorce laws?

Whilst there are many similarities in procedure and law across the US, there can also be a lot of variation within these similarities.

One example is the “waiting time” which exists in most (but not all!) states. It can be very short in some states, but 180 days in others. This waiting period is a cooling off timeframe. It is mandatory and your divorce cannot be processed until it has passed.

Each state will also have residency requirements (how long you or your spouse must have resided in that state as your main home) before you are permitted to file for divorce in that state and some require a length of separation prior to divorce.

These are just a few of the divorce laws that generally exists in most states, but can vary hugely in their potential impact on you and your divorce, even if it is “uncontested” and relatively simple. 

If you are in a situation where you are going for a contested divorce, a professional divorce attorney is recommended. A divorce attorney (divorce lawyer) will help you with sound divorce advice and look after your best interests regarding both financial and legal matters.

Follow the links above to find information on the divorce laws in your state.

DIY divorce online

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