How to File for Divorce

Petitioning the Court for Divorce

Confirm that you are eligible to file for divorce in the state where you live. Each state has residency requirements that you must meet if you want to file for divorce in that state. Typically, you must have lived in the state for at least 6 months to a year. Some states require a longer period of residency. However, there are often exceptions made. For example, if the reason for the divorce happened in that state, you may be able to file for divorce regardless of how long you’ve lived there. You may not be able to file for a no-fault divorce in that situation. If you’re concerned that you haven’t lived in a state long enough to file for divorce there, talk to an attorney about it. The specific court where you file your divorce typically will be the one in the county where you and your spouse live. If you and your spouse live in different counties, you may need to file in the county where your spouse lives.Tip: In addition to the state rules for divorce, the county where you file may have its own local rules and requirements. A local attorney can tell you about those.

Visit a family law attorney for a free initial consultation. Family law attorneys always provide a free initial consultation. Even if you don’t think you can afford an attorney, it’s still worth at least talking to someone about your case. They may be able to help you in a limited capacity for a reduced rate. Many family attorneys also have sliding fee scales based on your income. This could help you afford an attorney. Legal aid offices sometimes provide assistance for divorces free of charge. However, due to the demand for their services, they typically don’t take divorce cases unless abuse is involved.

Check for forms you can use if you're filing on your own. Family courts in most states have forms you can fill out if you want to file for divorce without hiring an attorney. Typically you can download these forms from the website for your state's court system. If you download forms from the state website, check with your local courthouse and make sure there aren't any additional forms you should fill out. Some local courts have their own forms, such as a particular cover sheet, that must be included. Typically, there will be different forms if you and your spouse have children or if you own a house together. Make sure you've picked the right forms. If you need help, the clerk's office of your local family law court can tell you which forms you need based on your circumstances.Tip: The clerk of court can tell you which forms to get and provide instructions on how to fill the forms out, but they cannot give you any legal advice about your particular case. If you need advice, talk to an attorney. Some courts also have family law facilitators who will advise you free of charge.

Reach a separation agreement if required. Some states, such as Massachusetts, require you and your spouse to come to a preliminary agreement on child custody, child support, and how you will divide your property before you can file for divorce. This agreement can be a temporary agreement between you and your spouse or one that you intend to make part of the final divorce judgment. If a separation agreement is required, the state court website will have information and forms for you to use. At a minimum, the separation agreement will govern relations between you and your spouse until your divorce is finalized. If you and your spouse have problems communicating or there has been a history of abuse, you may want to use mediation services or hire an attorney.

Complete your divorce petition. Through the divorce petition, you provide the court with information about yourself, your spouse, and your marriage. The petition is a document that formally asks the court to declare a legal end to your marriage. If you downloaded the forms online, you can type your information directly into the form. If you're working with paper forms you can write your answers. Print clearly and neatly using black ink. To complete the divorce petition, you will have to provide information about your spouse, including their full legal name, date of birth, and current residence. If you don't have all of this information and don't know how to get it, talk to an attorney.

Finalize and sign your divorce petition. After you've filled out the petition and other forms, read over them carefully and make sure all the information is correct. If you typed your information in the form, check for typos. Before you sign and date the forms, check if there is a notary block below the place where you're supposed to sign. If there is, don't sign your forms until you're in the presence of a notary. Not all states require you to sign your forms in the presence of a notary. However, many states do require this if you are not represented by an attorney. When you go to the notary, you will need a valid, government-issued photo ID so the notary can validate your identity. The notary will not read your forms – their only job is to certify that you are the person who signed the documents and that you did so of your own free will.

Gather supporting documents. At a minimum, you will need an official copy of your original wedding certificate to accompany your divorce petition. Some states may require other documents, such as birth certificates for any children you and your spouse have. If you don't have a copy of your wedding certificate, you can order one from the state vital records office of the state where you were married. If you were married in a different country, such as on a destination wedding, you would need a wedding certificate from the state where you registered as a married couple after you returned to the US. Wedding certificates for most states can be ordered online through the VitalChek website at https://www.vitalchek.com/marriage-records. Copies typically cost less than $20. It may take up to 2 weeks for you to get your copy in the mail, so plan accordingly.

Fill out forms to request temporary orders if necessary. Through a temporary order, the judge can require your spouse to pay you child support or spousal support, or order them to pay certain bills while your divorce is pending. If there has been abuse or you are concerned for your safety, you can also get a temporary restraining order against your spouse. Temporary orders only last until the divorce is finalized. If you want the same arrangements to continue after the divorce, those details must be included in your final divorce decree.

Take your forms to the family court clerk. Once you've completed all the necessary forms, make at least 2 copies of the completed forms. Take the copies and the originals to the court clerk of the court that will hear your divorce. The clerk will stamp all of your documents filed, then give the 2 copies back to you. One of those copies is for your records. The other must be delivered to your spouse.Tip: If you're applying for any temporary orders, go the clerk's office dressed in neat, professional clothing. Bring any documents that might support those orders, such as paystubs, tax returns, bill statements, or police reports. The judge may want to ask you questions before they make a decision on your temporary order.

Pay your filing fees or apply for a waiver. The fees to file a divorce case vary greatly among states, but they're typically between $200 and $500. If you can't afford the fees, you can apply for a fee waiver. Typically, you have to show extremely low income to qualify. If you are already receiving government benefits, such as SNAP or TANF, you may automatically qualify. Most court clerks accept a check or money order as payment for fees. Many accept cash, and some accept major credit or debit cards. It's a good idea to call ahead and find out what methods of payment are accepted so you can be prepared. If you want to apply for a waiver, bring information with you about your income and any property you own, such as a house. You will need this information to complete your application. You should also be ready to appear before the judge, as they may call you back to discuss your application.

Have your spouse served with the petition. Your spouse must have legal notice that you've filed for divorce. By using the "service" process, you have proof that they were aware of the case. If your spouse fails to respond to your petition or show up in court, you'll need to show the judge proof that they knew about it. If you and your spouse are on amicable terms, you can mail the papers using certified mail with return receipt requested. Keep the green card you get back in the mail with your copy of the divorce papers. This is your proof of service. You may also have to fill out a proof of service form and file it with the clerk. In some states, only attorneys can complete service this way. You can have anyone over the age of 18 take the papers to your spouse in person. They will fill out a proof of service form for you to file with the clerk. This option is free. You can also have a sheriff's deputy serve the papers on your spouse. This is a good option if you and your spouse are on contentious terms or if you have safety concerns. This option typically costs around $30. If you were granted a fee waiver, service by a sheriff's deputy is typically also free. There are also private process serving companies you can use. These companies are good at hunting down people, so if you suspect your spouse will try to avoid service, you may want to go this route. Prices vary widely by company and how long it takes them to complete service.

Negotiating Parenting Time and Property Division

Determine what property is separate and what property is joint property. Generally, any property that you owned before the marriage remains your own separate property and isn't divided. Most property acquired during the marriage is considered joint property, although there are some exceptions. Any property that one of you received as a gift or inheritance during your marriage is also considered separate property. In most states, if you and your spouse disagree on whether to characterize a particular piece of property as separate or joint property, it is presumed to be joint property if it was acquired during the marriage. The spouse who believes it is separate property must prove that to the judge.

Make a list of you and your spouse's debts. With a few exceptions, debts acquired during the marriage are considered joint debts, even if only one spouse's name is on the account. If you acquired the debt before the marriage, however, it is considered your separate debt. With some exceptions, you're typically responsible for that on your own. For example, if you incurred debt in anticipation of the marriage, or because your spouse agreed to help you pay it back, you may be able to argue that the debt is joint debt. However, if your spouse disagrees you would have to back up your claim with evidence, such as text messages between you and your spouse in which your spouse agreed to help you pay back the debt. If one of you acquired student loan debt while you were married, that debt is typically considered joint debt, even if the other spouse didn't cosign on the loan.Tip: Secured debts usually follow the property. In other words, if you have a mortgage and your spouse gets the house, they typically are responsible for the mortgage.

Complete your financial disclosure forms. Once you've made a list of assets and debts, you have to share this information with your spouse. Your spouse is responsible for making a similar list. Typically, you simply share this information with each other. However, some states also require you to file these forms with the court that is handling your divorce. For example, in California, you must complete these forms within 60 days of filing your petition for divorce. The forms must be accompanied by 2 years' worth of tax returns.

Talk to your spouse about how you want to split parenting time. If you and your spouse have children, you need to figure out who is going to have primary custody of the kids. Courts in most states consider it in the children's best interests to spend time with both parents, unless one parent is shown to be abusive or incapable of caring for the children. Most states have worksheets you can use to help determine equitable parenting time and child support that should be paid. These worksheets typically are included in the form packet for couples with children. If you don't believe your spouse should have time with your kids, it's typically a good idea to get an attorney to help you. You will have to prove to the court that your spouse is unfit to care for your kids, and this process can get very heated. In some situations, the court may appoint a guardian ad litem (GAL) to represent your children. The GAL will interview the children, parents, and other adults who spend time with the children, including teachers, coaches, or religious leaders. The GAL also observes the child interacting with parents or other adults. They then write up a report that tells the judge what arrangement they believe is in the best interests of the children.

Attend mediation if necessary. If you and your spouse can't agree on issues related to parenting time or the division of your property, a mediator can help. The clerk of the family court where you filed your petition will have a list of court-approved mediators that you can choose from. Mediation for divorcing couples is free in many states. In some states, mediation is required by law if you and your spouse can't agree. Because mediation is a non-confrontational environment, it can help you if you and your spouse are at each other's throats or if emotions run high whenever you start discussing divorce-related issues.

Write up your settlement agreement. Once you've come to an agreement, you and your spouse fill out a form to submit to the court that outlines your decisions. Technically, the judge can alter this agreement, although in practice few do. The settlement agreement form is typically part of your divorce form packet. Your court may have a deadline by which you must submit this form. Any deadline is usually listed in the instructions for your form packet. You can also call the clerk's office and find out. If there are any issues that you and your spouse didn't agree on, mark them clearly on the settlement agreement. These are issues that you want the judge to decide for you.Tip: Even if you and your spouse agree that only one of you will be responsible for particular joint debts, the creditor is not bound by this agreement and may still demand payment from either of you.

Attending Your Court Hearing

Complete any required parenting or divorce classes. Many court systems have courses to help divorcing couples understand the divorce process and navigate shared custody of their children. In some states, these classes are required. The family court clerk will let you know if you're required to take any classes. If the classes are required, the court typically won't set a date for a hearing until you've completed them. Keep in mind that you and your spouse usually aren't required to complete them together. Even if the classes aren't required, it's a good idea to take them if they are offered, especially if you're filing for divorce on your own.

Wait for notice of the date of your hearing. If you don't have an attorney, you'll receive notice in the mail when your hearing is scheduled. If you do have an attorney, they'll get the notice and then let you know the date of the hearing. If your case is contested, or you have issues you and your spouse left for the judge to decide, you may have one or two preliminary hearings before your final hearing. During these hearings, you will share documents, witnesses, and other evidence that you plan to present to the judge. Make every effort to attend court on the date the hearing is scheduled. While it may be possible to reschedule the hearing, you may need to show that you have a good reason for the court to do so. If you don't believe you can attend the hearing on the date scheduled, contact the clerk as soon as possible to determine your options.Tip: Many states have a required waiting period of anywhere from 30 to 90 days before a final hearing will be scheduled. At the end of the waiting period, your hearing will be scheduled. However, it still may be another couple of weeks before you go to court, depending on how busy the court is.

Organize your documents for the final hearing. Even for a simple divorce in which you and your spouse agree on everything, there will still be documents you'll need to bring with you. At a minimum, bring your copy of every document you've filed with the court. If you and your spouse disagree on any issues, you also want to bring documents or other pieces of evidence that support your claims. For example, if you claim a debt is joint and your spouse maintains it is your separate debt, you would want to bring any documents or other information that demonstrated your spouse agreed to help pay back the debt. For any documents other than documents you've filed with the court, make at least 2 copies of the document. The judge will likely want to review the original, but you'll need one copy for yourself and one for your spouse.

Familiarize yourself with the court and its procedures. If you've never been to court before, sit in on some hearings before you attend your own. That way, you'll have a better idea of what to expect. Watch the same judge that will be hearing your own case. If you don't know the name of the judge, you can find out in the clerk's office. You may also want to do a "dry run" so you know how to get to the courthouse, where to park, and how to find the right courtroom. This can be especially valuable if you live in a larger city.

Arrive at court at least 30 minutes early on the date of your hearing. Arriving early gives you plenty of time to park, get through security, and find the right courtroom. Do not bring your children with you to the hearing unless they are going to be witnesses. While you don't have to wear a suit, clean, neat, professional attire is preferred. The court may have the dress code listed on its website. Leave electronic devices at home. If you need to have your cell phone with you during the hearing, turn it on silent before you enter the courthouse. Items that may be used as weapons, including nail clippers, pocket knives, and scissors, should be left at home. If you take them with you to the courthouse they may be confiscated at the security checkpoint and you may not be able to get them back.

Stand when called to participate in your hearing. Typically, the judge will be hearing several cases in one day. When you enter the courtroom, take a seat in the gallery. When the judge calls your case, stand and indicate that you are present and ready to proceed. The judge or bailiff will indicate that you can come to the front of the courtroom. Move forward and stand behind one of the tables at the front of the courtroom. Do not sit down until the bailiff indicates that you may be seated.Tip: Some judges do a "docket call" at the beginning of the session to determine who is present and ready to proceed. If you have an attorney, the judge may ask the attorney how long they expect your hearing to take. Judges typically take shorter hearings first.

Present your case to the judge. Since you're the one who filed for divorce, the judge will hear from your first. Do not speak until the judge asks you to. If the judge interrupts you, stop talking and allow the judge to ask their question or make their statement. Respond to that question and wait until the judge tells you that you may continue before you go on with what you were originally saying. Speak loudly and clearly so that the judge can hear you. Don't talk to your spouse or address any questions to them. Speak only to the judge and any witnesses you are questioning. If you and your spouse agree on everything and your case is relatively straightforward, the judge will likely simply ask you a series of questions about the divorce based on the information you've provided.

Get copies of the judge's final decree. If your case is relatively straightforward, the judge will likely issue their ruling from the bench and sign a decree or order that you prepared as part of your form packet. However, if you and your spouse left issues for the judge to decide, you may have to wait for the final decree. If the final decree isn't available immediately, the judge will let you know when you can return to the clerk's office to get it.