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Filing for Divorce

Attorney vs. No Attorney

Although a divorce attorney can be helpful, they are not required. Many people opt to handle the divorce on their own or through a neutral third-party mediator. Divorce attorneys are most useful when there are issues in the divorce that are hotly contested by the spouses, such as:

  • child custody;
  • alimony; or
  • the division of assets.

However, if both spouses are willing to work together to negotiate a settlement, then you can probably get away with not using an attorney. If you do have a divorce attorney, you can still save yourself expensive legal fees by creating this agreement yourself and then having your attorney review it, instead of having the attorney draft it for you.

Note that state law varies greatly as to the specific requirements for initiating a divorce case in family court. For help figuring out the specific forms and procedures you should follow, you should contact a family or divorce court administrator (often the Clerk of Court) at the court that you will file your case in.

Grounds for Divorce

All 50 states now grant divorce based on no-fault grounds. A "no-fault" divorce is a divorce based on the consent of both spouses. The spouses are simply claiming that their marriage is irretrievably broken due to irreconcilable differences. Many states have completely done away with fault-based divorce and now only allow no-fault divorces.

These states are:

  • Arizona
  • California
  • Colorado
  • District of Columbia
  • Florida
  • Hawaii
  • Iowa
  • Kentucky
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • Oregon
  • Tennessee
  • Washington
  • Wisconsin

If you are filing your case in one of these states, then your agreement will automatically specify that you are seeking a no-fault divorce.

Fault vs. No-Fault Divorce

If you are not in one of the states listed above, then you will have the option of specifying whether you want a divorce based on fault or no-fault grounds. If you think that you and your spouse can come to an agreement on the terms of your divorce settlement agreement, then it will be easier for you to request a no-fault divorce. This is because no-fault divorces do not require you to go through the tricky process of trying to prove that one of the spouses is at fault.

However, there are some reasons why a fault-based divorce could be more desirable. For instance, courts may take into account the fault or bad behavior of one of the spouses when determining the following:

  • How to divide the marital property
  • Which spouse will have physical and legal custody of any minors
  • How much alimony should be awarded, if any

Also, note that it is possible for the spouse who is at fault to not contest the grounds for divorce by admitting his or her own fault. Common fault-based grounds for divorce include adultery, abandonment, cruel and inhumane treatment, habitual drunkenness or drug use, and felony conviction.

Residency Requirements

Most states require that one or both spouses have resided in the state for a certain amount of time before they can file for divorce in that state. The residency requirement is usually six months to a year. However, review this chart if you are unsure of whether you meet the residency requirement in your state.

Court Information

The final few steps of creating your divorce settlement agreement asks you for court and case information. If you do not know these details, you should contact the Clerk of Court at the family or divorce court for your county. The clerk will be able to tell you the local procedures for filing your petition for divorce and provide the details for the court address, division, and courtroom. If you have not yet filed your divorce petition, it is possible that your case number and judge have not yet been assigned. Alternatively, if you have retained an attorney for your divorce case, then that attorney should be able to provide these details for you.

Basic Steps for Filing Your Divorce

  • File your petition for divorce or dissolution of marriage. You can obtain the petition either on your state's family law website or by calling the Clerk of Court. Be sure to check with the clerk to see if any financial affidavits or other attachments are required to be submitted with your petition.
  • Serve your spouse with the petition and a summons. This is called "service of process" and it will officially put your spouse on notice that you have initiated the divorce proceedings. Check your state laws to know how to properly serve someone. Most states allow for service via certified mail, return receipt requested. If your state is one of the few that does not allow for service by mail, you will need to get a law officer, private service company, or a disinterested adult to serve the papers in person on your spouse.
  • Your spouse will need to file a response either accepting or rejecting the statements in your petition. Then your case will be scheduled for a hearing.
  • While waiting for the hearing you and your spouse can finalize the terms of your divorce settlement agreement to make sure all the terms are agreeable. You will usually submit your divorce settlement agreement before the hearing to give the judge time to review its terms.
  • Attach copies of any court orders already issued pertaining to your marriage or to matters of child support.

At the hearing, if the judge finds the divorce settlement agreement fair and there are no other issues to decide, the judge will grant your divorce. If the divorce is contested by one of the spouses or the judge finds the divorce settlement agreement to not be fair, the process may take longer and you may be required to attend multiple hearings.

Again, it is a good idea to contact a family or divorce court administrator, usually the Clerk of Court, to get information on the specific procedures required in your state.