How to File for Divorce

A Guide to Starting the Divorce Process

Divorce is a difficult and stressful life event that affects people in different ways. Not only must you deal mentally and emotionally with the decision to end your marriage, you still face the challenge of legally dissolving your relationship before you can fully move on.
In this article, we will go over what you should know about the process of filing for divorce. You will learn about the differences between divorce and legal separation, and what the accepted legal grounds for divorce are. We’ll discuss the things you should do before you file for divorce, and what to attend to after filing your divorce papers.
We will also review what goes into creating and filing your divorce papers—information which can help you perform the necessary legal process so you can move forward with your life.

What Is the Difference between Legal Separation and Divorce?

In a legal separation, you and your spouse are no longer living with each other, but you are still legally married.
A legal separation typically requires you and your spouse to negotiate a Separation Agreement that covers many of the points also brought up during a divorce. These points include:
  • Division of common property and assets
  • Spousal support payments
  • Custody and visitation of minor children
  • Child support payments
On the surface, it may seem odd that two people would continue to stay married while living apart. However, there are some valid and understandable reasons for choosing a legal separation over divorce:
  • You may believe you can re-establish your marriage after separating for a period of time.
  • You and your spouse may get tax savings that make it worthwhile to stay legally married.
  • You may be able to continue using each other’s healthcare insurance and other benefits by staying married.
  • You may not be legally eligible to file for divorce until a later date, but still want to have a court-recognized separation for in the meantime.
The conditions negotiated in a legal separation can be revisited, and a new Separation Agreement can be created to accommodate changes in each spouse’s life. Of course, if one of you wishes to get married to another person, a full divorce must be filed for and made official before this can happen.
If there are enough mutual advantages to staying legally married, you and your spouse could consider a legal separation rather than a divorce.
Ready to create a Separation Agreement?

What Are Legal Grounds for Divorce?

Grounds for divorce refer to the laws that govern whether a person qualifies for a divorce or not. In the US, every state has its own statutes regarding what constitutes legal grounds for divorce.
There are two types of grounds for divorce: fault and no-fault. A fault divorce is just how it sounds—one person blames the other person for the failed marriage. Fault divorces are often based on claims of marital infidelity, domestic violence, or criminal activity by one spouse.
A fault divorce is also sometimes called a contested divorce as it typically involves greater conflict between the married couple, particularly when it comes to the negotiation of how to divide their co-owned property and assets. It is highly recommended that you consult with a divorce lawyer if you are taking part in a fault divorce.
A no-fault divorce is where both spouses agree neither of them is solely to blame for the breakdown of their marriage, and they mutually wish to end their union in a non-confrontational manner. The term "irreconcilable differences" is a common cause cited in a no-fault divorce, also sometimes called an uncontested divorce.
In an uncontested divorce, there is usually less ill will than in a fault divorce, and both spouses tend to be more willing to agree on how to split their mutual assets and debts.
The state laws regarding legal grounds for divorce are those of your state of residency when you file for divorce—not the state you were married in. All states currently recognize some version of no-fault divorce.
Just be aware if you have moved to a new state recently, you must establish legal residency before you are permitted to file divorce papers in that state. The time required for legal residency varies by the state, but six months is a common requirement.

What Should I Do Before Filing for Divorce?

If you are filing for a no-fault divorce, you and your spouse should discuss the details and reach an agreement on the key issues before filing your divorce papers. These key issues involve answering some or all of the following questions:
  • Who will have primary custody of your children, or will joint custody be maintained?
  • Will one spouse make child support payments to the other?
  • Will one of you make spousal support payments to the other?
  • How will joint assets and debts be split between the two of you?
  • What will happen to your marital home? Will one of you be given sole ownership of it, or will it be sold and the net profit split between you?
  • Which (if any) specific items will be kept by your husband/wife? Which specific items will you keep for yourself?
  • If you have any pets, who will have ownership of them?
You will need to provide a lot of personal information when you sit down to create your divorce papers. It will help speed up the process if you gather as many of the relevant documents as possible. Here is a list of some of the important documents you should have on hand before filing for divorce:
  • Birth certificates for you, your spouse, and your children (if applicable)
  • Any relevant immigration and naturalization papers
  • Marriage license
  • Documents related to any previous marriages
  • Social Security cards for you and your spouse
  • Any income-related documents (paystubs, freelance invoices)
  • Property ownership papers (house deed, vehicle titles)
  • Pension and retirement plan records
  • Investment papers (stock certificates, bonds, mutual funds)
  • Debt-related records (credit cards, loans, mortgages)
  • Insurance documents (life, auto, health, homeowner’s)
  • Income tax return records
  • Bank account passbooks and other records

How Do I File for a No-Fault Divorce?

Filing for divorce refers to the process of creating your divorce papers and submitting them to a clerk at the appropriate county courthouse. Couples who agree on the key negotiation points of their breakup (financial, custody, etc.) can opt to create papers for an uncontested divorce by downloading and working through the relevant forms for their state/county of residence, or by using an online service that specializes in creating personalized divorce papers.
The divorce forms you’ll need are usually available for download from your state’s government website, or on a separate state courts website. You can use this online tool from the US Government to look up contact information for your state government.
Once you have filled out the forms (using the documents and information you gathered beforehand), you must submit the forms at a county clerk’s office, sometimes referred to as a clerk of the court. This office is typically found in a courthouse located in your county of residency. There is a filing fee which must be paid at the time you file your divorce papers.
Even in a no-fault divorce case, only one spouse is permitted to file the divorce papers. Copies of the divorce papers must then be given to the other spouse in a process called "serving divorce papers." In most cases, you are not permitted to serve divorce papers to your spouse yourself; you must have someone like a friend, relative, or coworker do it. In some cases, the divorce papers can be delivered to your spouse via certified mail.
The other option for creating and filing papers for an uncontested divorce is to use an online service. These services are similar to those used to help you to file your income tax returns online. Using an online service automates much of the process for you, making it easier and quicker to create your divorce papers. In some cases, the service providers may even be able to file your divorce papers online as well, saving you a trip to the county courthouse.
If you and your spouse are able to come to an agreement on the key issues, filing for an uncontested divorce online is the most convenient and least expensive option available. LawDepot has partnered with MyDivorcePapers to help you get started.
Pro Tip: When a woman files divorce papers, she is often able to submit an application to change back to her maiden name at the same time. This application may be part of the divorce forms themselves, or it may require a separate form.
Ready to start your divorce?

How Do I File for a Fault Divorce?

If you want to file for a fault divorce, also known as a contested divorce, it is strongly recommended that you consult with a divorce lawyer before filing divorce papers.
In a fault divorce, you are attempting to prove that your spouse is responsible for breaking up your marriage. The establishment of blame plays a large part in the decision of important issues like spousal support and child custody. A lawyer who specializes in divorce cases will be able to discuss your options with you, and will also likely want to assist with the creation of your divorce papers.

File for Divorce without a Lawyer

Divorce is a life-changing event that requires mental toughness and emotional endurance. Filing for a no-fault divorce online will help make the process as simple and low-stress as possible. Creating your divorce papers online enables you to choose when and where you provide the information, while letting you avoid the fees required to consult with a divorce attorney.
If you and your spouse are willing to agree on the key issues associated with ending a marriage, using an online service to file for an uncontested divorce is a fast and efficient way to initiate the process and help the two of you to move forward into the next phase of your lives.
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