How to Start the Divorce Process

First Steps to Take When Getting a Divorce

The divorce process involves a series of steps and considerations.

If you and your spouse agree about the divorce, have no assets to divide or children to share, and don’t need a lawyer, you can quickly move through the initial steps.

However, the more complex your situation, the more there is to know how to initiate a divorce.

Choose Your Process

There are several paths to divorce, including:

• File for an uncontested divorce yourselves: You and your spouse work out all the decisions and file the paperwork yourself.
• Use an online divorce service: If you and your spouse agree, an online divorce service can complete and file the paperwork for you from start to finish.
• Work with a mediator: You and your spouse work with a mediator who helps you resolve any issues and come to an agreement. You can then file on your own or with an attorney. Mediators are available through online divorce services.
• Work with collaborative law attorneys: You and your spouse hire attorneys who agree to only work out a settlement and not to go to trial.
• Hire an attorney: You each hire your own attorneys and attempt to settle or go to trial.

There is no wrong or right answer to this. Instead, it is about your comfort level and which path feels right to you. You need your spouse to be on board with mediation or collaborative law, so try to have a conversation about the path you will follow.

A litigated divorce will be the most expensive and time-consuming option. You will have more control and spend less if you choose one of the other paths, so this can be persuasive when talking with your spouse.

Choose Professionals

If you want to file for divorce online, choose a service that meets your needs. If you want to mediate, you can do that online or in person with the trained mediator of your choice. If collaborative divorce is your path, find attorneys who are skilled in this process. If you want to go the traditional route, then hire an attorney.

Understand Your State’s Laws

Learn about your state’s laws and procedures about things such as:

• Residency requirement: Most states require that you or your spouse have lived in the state for a specific period before you can file for divorce.
• Waiting period: Most states have a mandatory waiting period of between 30 and 90 days before a divorce can be finalized. The waiting period, sometimes referred to as a "cooling-off" period, is a mandatory hold-off time after filing for divorce before it can be finalized. It's like a pause button to give couples a chance to reconsider.
• Filing fees: Most states require filing fees of a few hundred dollars to begin your case.
• Divorce Forms: Each state has its own forms that must be completed to file for and finalize a divorce.
• Procedures: Depending on what process you choose, there will be different steps, but all divorces involve at least an initial filing and finalization of a judgment of divorce.
• Type of property division: States use either a community property method (strict 50/50 division of marital assets) or an equitable distribution model (marital property is divided in a way that is fair but not necessarily equal). Learn which approach is used in your state.
• Child custody laws: What factors are considered in determining custody in your state.
• Grounds for divorce: Every state has a no-fault divorce option, but other grounds may be available in your state.
• Support: Find out your state laws about spousal (alimony) and child support. Child support is usually determined using a formula.
• Timeline: Learn how long it will take for your divorce to be finalized.

Determine What You Want

Spend some time thinking about your divorce goals. Do you want residential custody of your child? Do you want to keep the marital home? Are there household items you want to keep?

Next, consider your spouse’s position. If possible, meet and see what things you can agree on. It can also be helpful to agree about who will file to begin the divorce process or who will hire a mediator or online divorce service.

Gather Financial Information

To be able to make financial decisions, you first have to completely understand exactly what there is to divide. You can’t negotiate until you know what you’re dividing.

A mediator has to know what you have to divide and an attorney can’t give you an estimate on what your divorce settlement or judgment will look like until they have these details.

And that means you (and your spouse) have to put together complete financial documentation.

Gather documents and statements, including:

• Income, including side hustles, bonuses, benefits, perks, etc.
• Bank and investment accounts, as well as stocks, bonds, etc.
• Retirement accounts
• Loans including home, car, personal, etc.
• Credit cards
• Utility payments
• Vehicles (title and valuation)
• Home mortgage and valuation or rent amounts
• Other real estate (valuation and loans)
• Insurance (health, home, renters, car, boat, life, etc.)
• Jewelry and collectibles (valuation)
• Household items
• Pets

You should also prepare a budget for your life as a single person to determine if you need spousal or child support or what you can afford to pay if it is ordered for your spouse.

File the Petition

When you are ready to file for divorce, the actual filing is usually short. If you are the person filing for divorce, you or your attorney will complete and file a divorce petition, sometimes called a summons.

The divorce petition contains:

• Names and addresses of the spouses
• Date and location of the marriage
• Names and ages of any minor children of the marriage
• Grounds for divorce
• How the residency requirement has been met
• What you are asking for (property division, child custody, child support, alimony, etc.)

Additional forms may need to be filed with this document, and you will pay a filing fee.

Next Steps to File for Divorce

Let’s take a look at the next steps involved in the divorce process.

Service

The petition must be legally served on your spouse. This usually means that an adult other than yourself hands them the papers. Other options include hiring a process server, mailing the papers, or sending them to your spouse’s attorney.

If you are unable to locate your spouse, the court might authorize service by publication in a newspaper.

Affidavit of Service

This document proves that your spouse was served with the petition and must be filed within a certain time period.

Answer or Notice of Appearance

If you filed the divorce, you are the plaintiff or petitioner. Your spouse is the defendant or respondent. The defendant must file an answer to the petition or a document similar to it that states what they agree or disagree with in your petition.

If they agree with everything, your divorce becomes an uncontested divorce, and the settlement you have reached becomes your judgment of divorce after a court appearance and more paperwork.

If your spouse does not file an answer or similar document and does not show up in court at the designated time for an initial hearing, the divorce becomes a default divorce.

Your spouse has no say in what happens, and the judge will grant you what you are asking for as long as it is reasonable.

Temporary Court Orders

In many states, as soon as a divorce is filed, the court automatically issues orders that the parties cannot destroy or hide assets, cancel insurance or utilities, sell significant assets, or take the children from their home.

These are meant to maintain the status quo until the court can become involved in the case.

Initial Hearing

The initial hearing is where your spouse must appear to avoid default divorce. At this hearing, each side may ask the court for temporary orders for things such as:

• Temporary exclusive occupancy of the marital home
• Temporary child custody
• Temporary child support
• Temporary spousal support
• Orders of protection/restraining orders

These orders are put in place so that there is a temporary decision about these important issues, which prevents conflict between spouses.

Discovery

During this phase of the process, both sides gather evidence and prepare their case. If you are working with an attorney, they may subpoena documents or hold depositions.

Financial Affidavit

In most states, whether the divorce is settled or not, both sides must file a formal financial affidavit with the court that lists their financial information and budgets. This provides transparency so that everyone can see what the couple owns and owes.

Settlement Meetings and Hearings

You and your spouse will try to reach a settlement. If you are using attorneys, they will try to reach a settlement.

Appearances with the court or the judge’s law clerk may be scheduled. If a settlement is reached, it is documented and put on the record. The judge then issues a judgment that incorporates the terms of the settlement.

Trial

If the parties cannot agree on every issue, a trial is scheduled, and the judge will hear testimony, review evidence, and then decide on the issues in dispute. A judgment is issued describing the decisions.

Non-Traditional Divorce Process

If you use an online divorce service or choose mediation or collaborative divorce, the process is much different. Instead of following a path to trial, you are working to resolve the divorce without the judge’s involvement. Your next steps are:

Decide About a Formal Filing

You don’t have to actually file a petition for divorce immediately. If you both agree you want the divorce, it may be better to wait and try to get to a settlement so you can file everything together.

Once you file for divorce, the clock starts ticking and there are papers that must be filed within a certain timeframe and certain processes and hearings that must be scheduled.

If you don’t want to go to a trial, you can just stay out of the court process until you have a settlement.

Note that if your state has a waiting period for divorce, it may make sense to file the petition and open the case so that countdown can start so that when you do file your settlement, you don’t have to wait for the divorce to be finalized.

Settlement or Mediation Meetings

Talk with your spouse, work with a mediator, or work with your collaborative attorneys to methodically work out all the issues in the divorce.

Take the time that you need to reach consensus about every piece of your divorce. You need to decide:

• How your assets and debts will be divided
• How you will share time with your children
• Whether child support will be paid and in what amount
• Whether spousal support or alimony will be paid, and if so, in what amount

You both have to work through a mental and emotional process to be ready to reach agreement, so be patient and think through all of your options.

Finalize Your Settlement

Once you have decided everything, put it in writing. A mediator will create a memorandum of agreement. An attorney or online divorce service might create a settlement or stipulation. This spells out your entire agreement.

File for or Complete Your Divorce

Once you have a settlement, it’s time to either file for divorce or submit the settlement to the court.

There may be other documents that need to be completed or filed and your online divorce service will manage this for you. The settlement becomes the judgment of divorce issued by the court and is binding.

Final Thoughts

Whether you are choosing to file for a traditional divorce or you are seeking more flexibility through an online divorce service or mediation, you can get to a resolution that allows you to move forward with your life.