What You Need to Know Before Getting a Divorce

Here’s what you need to know to before ending a marriage, including the requirements for divorce and alternatives to battling it out in court.

By , Retired Judge

In some circumstances, getting divorced can be relatively easy, particularly if you and your spouse don't have children and don't own many assets together. But divorce always involves lots of rules and paperwork—and often much emotion and negotiation.

Whether you and your spouse agree about how to divide your assets and share parenting responsibilities or are completely at odds on all the issues involved in ending your marriage, you'll need to know these basics to get your divorce started right.

Divorce Requirements

Every state requires couples to meet some basic requirements before they may get a divorce. Before you start the divorce process, check our articles on state laws on filing for divorce to make sure that you're eligible to get a divorce in the state where you're planning to file.

Residency Rules for Divorce

As long as you follow the state's marriage license rules, you can get married in any state—even if you don't live there. The requirements for ending a marriage, though, are not as relaxed. You must meet a state's residency requirements before you may file for divorce in its courts.

In the vast majority of the states, at least one of the spouses must have lived there for a certain period of time just before filing for divorce. Usually, the minimum time is six months, but it ranges from six weeks to two years in some circumstances. There are variations on this typical residency requirement:

  • Sometimes, the residency requirement is conditional, meaning that it will be longer or shorter depending on circumstances such as where the couple got married, where the events that led to the breakup of their marriage happened, or whether both spouses live in the§ state.
  • Usually, the residency requirement refers to where you actually live, but in a few states it refers to your "domicile," or the place you consider as your permanent home.

Do You Need To Be Separated Before Getting a Divorce?

In most states, you don't have to be separated from your spouse before you can get divorced. But a few states require that couples have lived "separate and apart" for a period of time, either before they may file for divorce or before the judge will finalize their divorce. Sometimes, as in South Carolina, the separation requirement only applies to couples filing for a no-fault divorce (more on that below).

The minimum separation time is usually a year, but it might depend on certain circumstances. For instance, Virginia normally requires a one-year separation before couples may file for a no-fault divorce, but the requirement is reduced to six months if they don't have children and have a written separation agreement. (Va. Code 20-91(9) (2022).)

The laws or courts in different states may have different interpretations of what "separate and apart" actually means—such as whether a couple may be considered separated if they continue to live in the same residence but sleep in separate bedrooms and maintain separate households.

You should find out as soon as possible whether your state has a separation requirement and, if so, what you have to do to meet the requirement—including whether you'll need to move out of the family home. Otherwise, the court might reject your divorce petition or put your case on hold if you don't meet any requirements in your state.

Grounds for Divorce

Divorce laws vary from state to state. But one rule in all states is that in your divorce petition (or complaint), you must state a reason ("grounds") for requesting a divorce. Grounds for divorce fall into two categories: "no-fault" and "fault-based."

No-Fault Divorce

Every state gives divorcing couples the option of filing a "no-fault" divorce. In some states, a no-fault divorce is the only option.

In a no-fault divorce, neither spouse has to claim or prove that the actions of the other caused the end of the marriage. Instead, the spouse who files for divorce simply declares that the marriage is over and there's no reasonable chance of reconciliation. In many states, the reason given for a no-fault marriage is that the couple has "irreconcilable differences" or that there's been an "irretrievable breakdown of the marriage."

Most couples choose to pursue a no-fault divorce. No-fault divorces are less complicated and less contentious than fault-based divorces: Because you don't have to prove your spouse did something wrong, there's typically less anxiety and tension during the divorce process. Not having to accuse your spouse of wrongdoing is especially helpful when you have children who might be affected by the proceedings. Also, when you don't have to fight about fault, the divorce might move more quickly. And less arguing almost always means lower legal fees.

Fault-Based Divorce

If you file for a fault-based divorce, you must prove that your spouse did something that caused the marriage to end. Grounds for fault-based divorce typically include adultery, extreme cruelty (physical or mental), and desertion.

Because fault-based divorces can be so contentious (and expensive), most divorcing couples will opt for a no-fault divorce. However, if your state considers fault when dividing marital property or assessing the need for alimony, filing a fault-based divorce might be a good option. (But it might not be necessary to introduce the issue of your spouse's misconduct for the purpose of deciding those issues.)

If you think you might file a fault-based divorce (or if your spouse has filed one already), consider consulting with an attorney—pursuing a fault-based divorce can be a lot more complicated (and more difficult to win) than a no-fault divorce.

The Issues in a Divorce

As part of your divorce, you'll have to address a number of issues related to ending your marriage. You and your spouse may negotiate and reach agreement on those issues, either on your own or with the help of divorce mediation. If you can't agree on any issue, a judge will have to decide for you after holding a trial (more on that below).

Dividing Property

In most divorces, couples will have to divide their property and debts. The general rule is that marital property—generally, property the spouses acquired and debts they incurred during the marriage—must be distributed between the spouses. The specific rules for dividing marital property depend on whether you live in an "equitable distribution" state or a "community property" state.

Equitable Division

Most states follow the principle of equitable distribution. This means that the court will divide the marital property between you and your spouse based on the facts of your case. Whatever the judge feels is fair in your particular set of circumstances will determine how the judge distributes the property. Equitable distribution doesn't guarantee that each spouse will get an equal amount.

Community Property

In a community property state, all marital assets—called "community property"—are generally divided equally between the spouses, unless there's some reason to divide it another way. Community property usually includes:

  • all property acquired by either spouse during the marriage, regardless of whose name the property is in
  • each spouse's income during marriage, and
  • debts incurred by either spouse during marriage.

Marital vs. Separate Property

In both equitable distribution states and community property states, some assets are considered the "separate property" of one of the spouses. Separate property usually includes any assets owned before the marriage, as well as some types of property acquired during the marriage, such as gifts and inheritances. If an item is your separate property, you will be able to keep it after the divorce.

Sometimes, however, assets that were separate property can become marital property. For instance, if you "commingle" (mix) separate property with marital property during the marriage, the separate property will probably lose its protected status and will divided during the divorce. One way too avoid this result is to keep your separate property in an individual account and keep records of all transactions involving your separate assets.

Alimony

Alimony (also known as "spousal support" and "maintenance") refers to payments that one spouse makes to help support the other spouse during or after a divorce.

After considering factors such as the spouses' income and earning capacity, most courts award alimony for a limited period of time. For example:

  • Judges may award temporary alimony while a divorce case is working its way through the courts. The rules for awarding temporary alimony are typically less stringent than for other types. They're usually based on whether the supported spouse needs the financial assistance and the other spouse can afford to pay it.
  • After the divorce is final, judges may award what's often called "rehabilitative alimony" to help the supported spouse become self-sufficient. The award might last only as long as it takes for the supported spouse to find work or gain the necessary education or job skills that will allow that person to earn enough to live on.

When divorcing spouses have been married for a long time—anywhere from 10 to 20 or more years, depending on your state—a judge might award the supported spouse "permanent" or "lifetime" alimony. This type of award is made in rare cases where it's likely that one of the spouses will never be able to be financially independent from the other.

Child Custody and Parenting Time (Visitation)

In deciding child custody and parenting time issues, judges evaluate what is in the "best interests of the child." As long as it's in the child's best interests, most judges craft child custody orders to ensure that both parents remain actively involved in the child's life.

These days, it's common for judges to award "joint legal custody" to the parents. This means that both parents have a say in important decisions about topics such as education, religious upbringing, and non-emergency medical treatment. However, judges may award "sole legal custody" to only one parent if joint legal custody is not in the child's best interests—such as when one parent is unfit to make those decisions, or the ongoing conflict between the parents is so great that making decisions together will only lead to more distress.

Joint legal custody doesn't necessarily mean that the parents will have joint physical custody—meaning that the child spends nearly the same amount of time with each parent. Although the trend is moving toward a preference for joint or shared physical custody, it may not be best for the child for a number of reasons. In that situation, the judge will award sole or primary physical custody to one parent, while normally providing the other parent with a parenting time ("visitation") schedule.

Child Support

Both parents are responsible for financially supporting their children. All states use child support guidelines to calculate how much money a parent must contribute. Most states' guidelines specify that each parent's income and the amount of time the parent spends with the child must be considered in the support calculations. The amount of child support awarded can also be affected by other related factors, such as a child's medical needs (like health insurance and medical bills not covered by insurance) and the costs of extracurricular activities.

Can You Get a Divorce Without Going to Court?

Your divorce will not be final until a judge signs a written divorce decree or judgment. But that doesn't mean that you and your spouse have to fight out ("litigate") your issues in court. Here are some possible alternatives.

Uncontested Divorce

When you and your spouse can work together and reach agreement on all the issues in your divorce, you might be able to file for an uncontested divorce. Uncontested divorces are simpler, faster ways to end your marriage than traditional contested divorces. Every state has its own procedures for uncontested divorce.

In addition to being less contentious and faster, uncontested divorces are almost always cheaper than contested divorces. Many couples can get through the process without hiring a lawyer, either on their own or with the help of mediation, an online divorce service, or both (more on that below).

Divorce Mediation

In a mediated divorce, a neutral, trained third party (called a "mediator") helps both spouses work together to reach an agreement about the issues in their divorce. Mediators will never make decisions for you. Rather, they guide you and your spouse through the process of clarifying the issues, identifying possible solutions, and negotiating agreements. If mediation is successful, mediators will generally prepare a document that reflects your agreements. That document can then be the basis for a written marital settlement agreement that you'll submit to the court. If the judge approves the settlement agreement, it will usually become part of your final divorce decree.

Mediation has many advantages:

  • It's usually much faster and less expensive than litigation.
  • Mediation helps foster future communication between the spouses.
  • When it's successful, mediation gives couples more control over the outcome of their divorce—which usually means they'll be more satisfied with the results.
  • For many couples, mediation is also much more convenient and gives them greater control over the timing of the divorce. Many mediators and services even offer spouses the option of conducting their divorce mediation online.

All in all, mediation is an excellent option for spouses who are willing to work together to reach a compromise and who can negotiate honestly and on a level playing field. However, mediation is not a good option when there is current or threatened domestic violence or when one spouse is unwilling to cooperate.

Collaborative Divorce

Collaborative divorce is an option when spouses want to avoid fighting in court but desire to have lawyers negotiate on their behalf. In a collaborative divorce, the spouses and their attorneys agree to try their best to reach agreement on the divorce issues. If they can't reach agreement, the attorneys must withdraw from representing the spouses, and the spouses must start the divorce process all over—including hiring new attorneys. The risk of having to start from scratch and incur additional attorneys' fees often provides strong incentive for the couple to negotiate in good faith and reach a compromise.

How Long Will It Take to Get Divorced?

From the time you file the initial divorce papers, some states have mandatory waiting periods—typically three to six months—before a judge will sign the final divorce decree. But those waiting periods are just the minimum. Depending on the circumstances in your case, it can take longer than that to get divorced—sometimes much longer. In a divorce survey conducted by Martindale-Nolo Research, 35% of people said their divorce took more than a year. As that survey showed, the most important factors that affect how long a divorce will take are:

  • the number of disputed issues in your divorce, and
  • how long it takes you and your spouse to settle those issues, or whether you need to go to trial to have a judge resolve the disputes for you.

So if you're concerned about getting divorced as quickly as you can, you should do everything you can to try to reach a fair settlement of the issues in your case, as soon as possible.

Do You Need a Lawyer to Get a Divorce?

Most—if not all—states allow spouses to represent themselves in divorce matters (known as appearing "pro se" or "pro per"). But whether that's a good idea is another question. Spouses who can't agree on issues of custody and parenting time, alimony, or distribution of property will probably need to hire an attorney to help them reach the outcome they desire.

On the other hand, when couples agree on all the issues and have a written marital settlement agreement, they might not need to hire a lawyer. They can often DIY their divorce and use the self-help divorce instructions and forms provided by most local courts. Or they can file for divorce online by using a service that will provide them with the completed forms they need, based on their answers to an online questionnaire. Some of these services will even take care of the filing process, for an additional fee.

Finally, if money for a lawyer is a problem but you feel the need for legal advice in your divorce, you might see if a local attorney would be willing to work with you on a consulting or as-needed basis—such as to answer specific questions or review your draft settlement agreement. You might also qualify for free or low-cost legal assistance from your local legal aid office or county bar association (the local professional organization for lawyers).

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