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, the grounds for divorce, and alternatives to battling it out in court.

In some circumstances, getting divorced can be relatively easy, particularly if the spouses don't have many assets and don't have children. 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 ends on all issues, you'll need to know these basics to get your divorce started right.

Divorce Requirements

Every state requires couples to meet some requirements before a court can grant a petition (request) for divorce.

Residency Rules

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. Instead, you must meet a state's residency requirements before you can file for divorce in its courts.

Most states require the filing spouse to live in the state for at least three months before filing a divorce petition. Some states, though, require only that the filing spouse lives in the state at the time of filing and plans to remain in the state for a certain amount of time. Before you file for divorce, check the laws of the state where you plan to file to make sure you meet any residency requirements.

Waiting Periods

Your state might not allow a judge to finalize your divorce until a certain period of time (a "waiting period") has passed. For example, in Texas, a judge can't grant a divorce before the 60th day after the petition was filed. (Tex. Family Code § 6.702 (2021).) Some states, such as Louisiana and Michigan, have longer waiting periods for couples with children.

You'll want to find out if your state has a required waiting period before you file so that you'll have an accurate estimate of how long it will take for the court to finalize your divorce.

Separation Requirements

Some courts require married couples to live "separate and apart" either before they can file for divorce or before the judge can finalize the divorce. Most states, though (especially no-fault divorce states), don't require spouses to separate.

It's best to find out about any separation requirements as soon as possible—if you don't meet your state's separation requirement, a court might reject your divorce petition or put your case on hold.

Grounds for Divorce

Divorce laws vary from state to state. But one rule in all states is that you must provide the court in your petition with a reason ("grounds") for why you want 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 prove that the actions of the other caused the end of the marriage. Rather, only one spouse must claim that the marriage is over and there's no 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 often 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. 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

Before a divorce is finalized, a number of issues regarding the marriage must be decided. The couple can negotiate and reach agreement on their own, or a judge can decide the issues and order a resolution in the final divorce decree.

Dividing Property

In most divorces, couples will have to divide property and debts. The general rule is that family courts divide a couple's marital property—property they acquired and debts they incurred during the marriage. How a court divides marital property depends 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, the court will divide all marital assets—called "community property"—equally between the spouses, unless there's some reason to divide the property in 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.

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.

Separate property can be turned into community property, though. If you "commingle" (mix) separate property with community property during the marriage, the separate property will probably lose its protected status, and will divided as community property during the divorce. To avoid this result, 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") is a one-time or repeating payment made by one spouse to the other after the divorce.

After considering factors such as the spouses' income and earning capacity, most courts award alimony for a limited duration. For example, one type of limited spousal support is called "rehabilitative" alimony. Judges will award rehabilitative alimony for a period of time they believe will allow a spouse to become self-sufficient. The award might last as long as it takes for the supported spouse to find work or learn skills that will allow the individual to be more employable.

Another type of short-term spousal support is "reimbursement" alimony, often awarded in short marriages where one spouse contributed to the other's pursuit of a college or graduate school degree. The theory is that contributing spouses deserve to be repaid for the sacrifices they made to further the other spouse's education or career.

When divorcing spouses have been married for a long time—anywhere from 10 to 20 or more years, depending on your state—a court might award the supported spouse "permanent" or "lifetime" alimony. This type of award is made in extreme 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 courts craft child custody orders to ensure that both parents remain actively involved in the child's life.

In an ideal situation, a judge will 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. If joint legal custody is not in the child's best interests, though, the judge might award "sole legal custody" to only one parent.

Joint legal custody doesn't necessarily mean that the parents will have "joint physical custody." For any number of reasons, joint physical custody might not be possible. In that case, the judge will award physical custody to one parent ("sole physical custody"), but normally provide 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 is not final until a judge signs a written judgment of divorce ("divorce decree"). Even though a judge must issue the final divorce decree, there's no requirement that you fight out ("litigate") your issues in court. Here are some possible alternatives.

Uncontested Divorce

When a divorcing couple can work together and reach agreement on all the issues in their divorce, they might be able to file an uncontested divorce. Uncontested divorces are simpler, faster ways to end your marriage than battling it out in court. Every state has its own procedures for how to file an uncontested divorce.

In addition to being less contentious and faster, uncontested divorces are often far less expensive than litigated ones. Rather than hire a lawyer, many spouses choose to DIY their uncontested divorce or use an online service to assist them.

Divorce Mediation

In a mediated divorce, a neutral third party (called a "mediator") helps both spouses work together to reach an agreement about the issues in their divorce. Mediators never make decisions for the couple; rather, they might suggest possible resolutions. If mediation is successful, the spouses and the mediator can write up a marital settlement agreement to present to a judge. If the judge approves the settlement agreement, the judge will incorporate it into a final divorce decree.

Mediation has many advantages over litigation: it's often much faster, less expensive, and it helps foster future communication between the spouses. For many, it's also much more convenient and allows the spouses to have greater control over the timing of the divorce. Many mediators and services even offer spouses the option to conduct their divorce mediation online.

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. 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.

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 custody and parenting time issues, 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 a couple agrees on all the issues and have a written marital settlement agreement, they might not need to hire a lawyer. They can DIY their divorce and use the self-help divorce instructions and forms provided by their local court.

Alternatively, spouses who have reached an agreement about the issues in their divorce but would like to have some assistance can hire an online divorce service. Most online divorce services provide all the forms the couple will need and will review all the forms after the couple has filled them out. Many will even file the paperwork with the appropriate court.

Finally, if you're uncomfortable representing yourself, but money for a lawyer is a problem, you might try consulting with a local attorney to see whether the attorney would be willing to give you advice on an as-needed basis. 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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