Divorce Law
Filing for divorce can be complicated, and you should make sure you understand your rights and options before you make such an important decision. There are specific requirements for filing for divorce set by your state's laws. Once you file, a simple divorce may only take a few weeks, but a disputed divorce can drag on for years. Before you file for divorce, you should consider meeting with a family law attorney to talk through the process.
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Filing for divorce is like initiating any civil lawsuit. It starts with filing divorce papers, known as a “complaint." You will likely find the forms you need to file with the court, along with instructions, on your state's court website. While you may not need to hire a lawyer to end your marriage, you should consider getting legal advice so you understand your rights and how the process works.
The filing requirements for a divorce vary greatly by state. Some states make it quick and easy to get a divorce, while others require waiting more than a year before a judge can finalize it.
One of the first things to know is that you generally have to be a resident of a state for a certain amount of time before you can file for divorce. The residency requirement may be based on time, where you must reside for a period of days or months, or even up to one year in some states. Some states, like Texas or Wisconsin, also require filers to reside in the county where they are filing for divorce.
There may be some exceptions to the residence requirement. For example, members of the military can file for divorce in the state where their spouse resides, the state where they are stationed, or the state where they claim residency.
Some states also have a waiting period. A waiting period may require you and your spouse to live apart for a minimum amount of time before finalizing the divorce. Also called a cooling-off period, one reason for these laws is to encourage couples to work out their differences. Some states, like Hawaii and Illinois, have no waiting period. States like Maryland and Nevada have the longest waiting periods of 365 days. Most states have a divorce waiting period of about 30 days.
In the past, states only allowed a couple to divorce based on a few reasons, like infidelity or a criminal conviction. Now, all states allow for “no-fault" divorce. In a no-fault divorce, either you or your spouse can end the marriage based on any reason. The spouse filing for divorce may need to state that the marriage is irretrievably broken and cannot be saved, and the process can move forward even if the other spouse does not want to.
In a joint petition for divorce or an uncontested divorce, the spouses have generally worked out all the terms of the legal separation, including:
In an uncontested divorce, the court will make sure you meet the residency and filing requirements. After the necessary waiting period, the court will issue a final order to dissolve the marriage. An uncontested divorce is generally faster and less expensive than a contested divorce because there are no further disputes requiring time in court. A joint petition for divorce also allows you to maintain privacy and may help you and your ex stay on better terms in the future.
A contested divorce occurs when you and your spouse cannot agree on all terms and conditions. A contested divorce may involve one or multiple disagreements over money, children, or property. A court may have to resolve the disputes, which can make the divorce take longer and cost more. The time to resolve a contested divorce may depend on the factors in dispute. A highly contested divorce can take years because it takes time to sort through every issue.
An annulment is generally limited to a certain set of circumstances such as a prohibited marriage or where the marriage was unlawful. Grounds for annulment may include bigamy, incest, fraud, or underage marriage. If the state grants an annulment, it is as if the marriage never occurred. If you wish to seek an annulment, you may need to discuss your options with a family law attorney first.
You may have a lot of questions about hiring a divorce lawyer. An experienced divorce attorney can explain your rights and options, tell you how to file for divorce, and then guide you through your case, including negotiating with your spouse's attorney, to make the process as easy as possible.