Divorce is the legal process of dissolving a marriage, but it is not as easy as simply deciding that you no longer want to be married. In most states, you must complete several steps before your divorce is approved and the dissolution of your marriage is finalized.
Each state has its own laws and rules governing the dissolution of marriage, a time that is often both emotionally and financially challenging for the parties involved. These laws govern the division of property, the allocation of alimony, and the rights associated with child custody and child support.
In addition, rules governing divorce create a set of steps that must be followed, and that provide for uniformity and fairness in one of the most contentious areas of law in the United States. Understanding what to expect can make the process a lot easier for you.
What Does Filing for Divorce Mean?
The American Bar Association defines divorce as follows: "A divorce or dissolution of marriage is a decree by a court that a valid marriage no longer exists. It leaves both parties free to remarry. The court may divide property and order spousal support, and, if children are involved, award custody and child support."
As such, filing for divorce means taking the necessary steps to ask a court to dissolve your marriage, including:
- Meeting the statutory requirements for divorce in your state;
- Filing the necessary documents with the court;
- Paying the necessary filing fees; and
- Serving your spouse with the divorce papers
Types of Divorces
There are two main types of divorces:
- Fault
- No-fault
A no-fault divorce is generally faster, easier, and less expensive than a fault-based divorce. On the other hand, a fault-based divorce allows for a waiver of the waiting period often associated with no-fault divorces.
Fault-based Divorce
As the name implies, a fault-based divorce is where one spouse blames the other spouse for the divorce. Fault-based divorces must be based on certain grounds, which vary by state but are usually as follows:
- Adultery - either witnessed or inferred. Factors for inferring adultery include the opportunity to commit adultery, such as being alone with a third party, and a communicable inclination that adultery occurred, such as romantic communications.
- Cruel and abusive treatment - either physical or mental. Most states have a requirement that mental abuse must pose the risk of physical manifestation in order for it to constitute grounds for a fault-based divorce.
- Desertion - for instance, if a spouse departs from the marital home without consent or justification for one year, some states will allow a fault-based divorce.
- Lack of cohabitation - typically when longer than one year.
- Drug or alcohol dependency - most often, the dependency has to be voluntary, gross, and confirmed.
- Imprisonment - usually, when one spouse is imprisoned for more than five years, the other spouse may file for a fault-based divorce.
Like any civil lawsuit, a fault-based divorce must be filed in court, and, in most states, will be decided by a judge.
No-Fault Divorce
When a spouse files for a no-fault divorce, grounds for the divorce are still needed. Usually, the grounds for a no-fault-based divorce are irreconcilable differences, meaning that the marriage is irretrievably broken.
A no-fault divorce can be uncontested. In this case, both spouses agree to the divorce, prepare a divorce settlement agreement covering all economic issues, and file a divorce petition with a probate court. The court will then schedule a hearing and approve the divorce petition on the grounds of irreconcilable differences.
No-fault divorces are typically subject to a long waiting period before the divorce becomes finalized. In most states, the spouses must remain separated for six months to a year, and attempts to reconcile will void their settlement agreement.
How Much Does it Cost to File For Divorce?
Cost is one of the biggest concerns that people have when considering divorce. Filing fees vary from state to state and range from $75 - $400. However, the total cost of a divorce will vary depending on several factors, including:
- The complexity of your case;
- Whether you and your spouse can work together; as well as
- The required filing fee for the jurisdiction in which you will file your divorce
The cost of divorce can also be categorized depending on the following classifications:
Simplified or Fast-track Divorce
The cheapest way to get divorced is a simplified or fast-track divorce. This type of divorce is typically reserved for couples with no minor children, little joint property, agree to waive alimony, and have a written settlement agreement dividing their assets and debts. In states that allow this process, a couple can typically conclude their divorce without needing to hire attorneys.
Uncontested Divorces
Couples who agree on all their divorce-related issues, including alimony child support, child custody, and the division of marital assets, can file an uncontested divorce. You don't necessarily need a lawyer for an uncontested divorce. Still, for complicated matters like dividing a retirement account, it is best to hire an attorney to review your settlement agreement to protect your rights.
Contested Divorces
A contested divorce is usually far more expensive than an uncontested divorce. This is because attorneys charge by the hour for tasks such as resolving disputed issues, preparing documents, going to court, correspondence with the other spouse's attorney, and negotiating a settlement agreement.
In any event, how much your attorney charges you will primarily depend on their level of experience and the going rate for the same or similar legal services in your area. To minimize costs, you and your spouse can try mediation, which is typically less expensive.
An experienced family law attorney can help you understand all the costs that you may incur for your particular case.
What is the Divorce Process?
The divorce process varies somewhat from state to state but is generally as follows:
Meet the Statutory Requirements
If you plan to file a complaint for divorce, you first need to check the state's statutory requirements for divorce to see if you qualify. Ensure that you meet the residency requirements and have valid grounds for divorce, both of which vary from state to state. You might also need to live apart from your spouse for a certain amount of time before filing.
Complaint, Answer, and Counter-complaint
Once you are sure that you meet the state's statutory requirements for divorce, you will need to file a complaint for divorce with the court. The complaint is a document that is filed to open the court case and will include essential information about the parties, as well as, explain what you want out of the divorce.
You must then provide a copy of the complaint to your spouse. This is known as service of process or more simply service. Each state has its own rules governing the steps for service of process, but you are responsible for making sure that the divorce papers are properly served.
Once served with the complaint, your spouse only has a short period of time to file a formal answer with the court, along with a counter-complaint if they choose to file one. If your spouse fails to file an answer with the court, you may be able to request that the judge enter a default judgment against your spouse.
Discovery
In most divorces, the parties are required to engage in the discovery process, which essentially means that each side has to share relevant information with the other side. Common discovery items include things such as:
- Tax returns
- Account statements
- Financial summaries
- Proof of income
- Records pertaining to minor children, such as school report cards and medical records
- Retirement account information
- Health and life insurance information
Agreement or Trial
If you and your spouse are eventually able to agree on the terms of a divorce settlement agreement, it will need to be reduced to writing and approved by the court.
Trial
Only when all else has failed will your divorce actually go to trial. A trial can settle all or just a few issues depending on whether you have been able to agree on any of the terms of your divorce or not.
Final Judgment of Divorce
The final step in the divorce process—whether contested or uncontested and whether it goes to trial or not—is when the judge finalizes the divorce by approving your settlement and issuing a final judgment of divorce, also called a divorce decree.
If you have questions about how to discuss divorce with your spouse or how to assemble the information you need to file for divorce in your state, a local divorce attorney can help. LawDistrict also has a divorce agreement template that can help in the process.
Divorce is the legal process of dissolving a marriage, but it is not as easy as simply deciding that you no longer want to be married. In most states, you must complete several steps before your divorce is approved and the dissolution of your marriage is finalized.
Each state has its own laws and rules governing the dissolution of marriage, a time that is often both emotionally and financially challenging for the parties involved. These laws govern the division of property, the allocation of alimony, and the rights associated with child custody and child support.
In addition, rules governing divorce create a set of steps that must be followed, and that provide for uniformity and fairness in one of the most contentious areas of law in the United States. Understanding what to expect can make the process a lot easier for you.
What Does Filing for Divorce Mean?
The American Bar Association defines divorce as follows: "A divorce or dissolution of marriage is a decree by a court that a valid marriage no longer exists. It leaves both parties free to remarry. The court may divide property and order spousal support, and, if children are involved, award custody and child support."
As such, filing for divorce means taking the necessary steps to ask a court to dissolve your marriage, including:
- Meeting the statutory requirements for divorce in your state;
- Filing the necessary documents with the court;
- Paying the necessary filing fees; and
- Serving your spouse with the divorce papers
Types of Divorces
There are two main types of divorces:
- Fault
- No-fault
A no-fault divorce is generally faster, easier, and less expensive than a fault-based divorce. On the other hand, a fault-based divorce allows for a waiver of the waiting period often associated with no-fault divorces.
Fault-based Divorce
As the name implies, a fault-based divorce is where one spouse blames the other spouse for the divorce. Fault-based divorces must be based on certain grounds, which vary by state but are usually as follows:
- Adultery - either witnessed or inferred. Factors for inferring adultery include the opportunity to commit adultery, such as being alone with a third party, and a communicable inclination that adultery occurred, such as romantic communications.
- Cruel and abusive treatment - either physical or mental. Most states have a requirement that mental abuse must pose the risk of physical manifestation in order for it to constitute grounds for a fault-based divorce.
- Desertion - for instance, if a spouse departs from the marital home without consent or justification for one year, some states will allow a fault-based divorce.
- Lack of cohabitation - typically when longer than one year.
- Drug or alcohol dependency - most often, the dependency has to be voluntary, gross, and confirmed.
- Imprisonment - usually, when one spouse is imprisoned for more than five years, the other spouse may file for a fault-based divorce.
Like any civil lawsuit, a fault-based divorce must be filed in court, and, in most states, will be decided by a judge.
No-Fault Divorce
When a spouse files for a no-fault divorce, grounds for the divorce are still needed. Usually, the grounds for a no-fault-based divorce are irreconcilable differences, meaning that the marriage is irretrievably broken.
A no-fault divorce can be uncontested. In this case, both spouses agree to the divorce, prepare a divorce settlement agreement covering all economic issues, and file a divorce petition with a probate court. The court will then schedule a hearing and approve the divorce petition on the grounds of irreconcilable differences.
No-fault divorces are typically subject to a long waiting period before the divorce becomes finalized. In most states, the spouses must remain separated for six months to a year, and attempts to reconcile will void their settlement agreement.
How Much Does it Cost to File For Divorce?
Cost is one of the biggest concerns that people have when considering divorce. Filing fees vary from state to state and range from $75 - $400. However, the total cost of a divorce will vary depending on several factors, including:
- The complexity of your case;
- Whether you and your spouse can work together; as well as
- The required filing fee for the jurisdiction in which you will file your divorce
The cost of divorce can also be categorized depending on the following classifications:
Simplified or Fast-track Divorce
The cheapest way to get divorced is a simplified or fast-track divorce. This type of divorce is typically reserved for couples with no minor children, little joint property, agree to waive alimony, and have a written settlement agreement dividing their assets and debts. In states that allow this process, a couple can typically conclude their divorce without needing to hire attorneys.
Uncontested Divorces
Couples who agree on all their divorce-related issues, including alimony child support, child custody, and the division of marital assets, can file an uncontested divorce. You don't necessarily need a lawyer for an uncontested divorce. Still, for complicated matters like dividing a retirement account, it is best to hire an attorney to review your settlement agreement to protect your rights.
Contested Divorces
A contested divorce is usually far more expensive than an uncontested divorce. This is because attorneys charge by the hour for tasks such as resolving disputed issues, preparing documents, going to court, correspondence with the other spouse's attorney, and negotiating a settlement agreement.
In any event, how much your attorney charges you will primarily depend on their level of experience and the going rate for the same or similar legal services in your area. To minimize costs, you and your spouse can try mediation, which is typically less expensive.
An experienced family law attorney can help you understand all the costs that you may incur for your particular case.
What is the Divorce Process?
The divorce process varies somewhat from state to state but is generally as follows:
Meet the Statutory Requirements
If you plan to file a complaint for divorce, you first need to check the state's statutory requirements for divorce to see if you qualify. Ensure that you meet the residency requirements and have valid grounds for divorce, both of which vary from state to state. You might also need to live apart from your spouse for a certain amount of time before filing.
Complaint, Answer, and Counter-complaint
Once you are sure that you meet the state's statutory requirements for divorce, you will need to file a complaint for divorce with the court. The complaint is a document that is filed to open the court case and will include essential information about the parties, as well as, explain what you want out of the divorce.
You must then provide a copy of the complaint to your spouse. This is known as service of process or more simply service. Each state has its own rules governing the steps for service of process, but you are responsible for making sure that the divorce papers are properly served.
Once served with the complaint, your spouse only has a short period of time to file a formal answer with the court, along with a counter-complaint if they choose to file one. If your spouse fails to file an answer with the court, you may be able to request that the judge enter a default judgment against your spouse.
Discovery
In most divorces, the parties are required to engage in the discovery process, which essentially means that each side has to share relevant information with the other side. Common discovery items include things such as:
- Tax returns
- Account statements
- Financial summaries
- Proof of income
- Records pertaining to minor children, such as school report cards and medical records
- Retirement account information
- Health and life insurance information
Agreement or Trial
If you and your spouse are eventually able to agree on the terms of a divorce settlement agreement, it will need to be reduced to writing and approved by the court.
Trial
Only when all else has failed will your divorce actually go to trial. A trial can settle all or just a few issues depending on whether you have been able to agree on any of the terms of your divorce or not.
Final Judgment of Divorce
The final step in the divorce process—whether contested or uncontested and whether it goes to trial or not—is when the judge finalizes the divorce by approving your settlement and issuing a final judgment of divorce, also called a divorce decree.
If you have questions about how to discuss divorce with your spouse or how to assemble the information you need to file for divorce in your state, a local divorce attorney can help. LawDistrict also has a divorce agreement template that can help in the process.
Most Popular Posts
An eviction filed by your landlord hurts your credit report. It is also held as a public record and other landlords can view your previous rental...
As a property owner knowing squatter rights is crucial. These aren’t your ordinary delinquent tenants and knowing how the law treats them is...