Divorces can be emotional and stressful, and there were 673,989 in 2022 alone, according to the Centers for Disease Control. While going through the divorce process is not an uncommon experience, it can still be deeply confusing. Whether you are considering a split from your spouse or are already navigating the legal system, this guide offers you input from practicing family law attorneys and walks you through how to get divorced step by step.
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Key Terms in Divorce
Before we dive into the legal process for divorce, it is important to understand some key concepts.
Contested vs. Uncontested Divorce
Divorces are usually referred to as either contested or uncontested. Here’s what that means.
- Contested divorce. In these cases, the parties disagree on one or many important issues. Contested divorces can be more time-consuming and expensive when compared to uncontested divorces.
- Uncontested divorce. In an uncontested divorce, the parties agree on all of the major issues, including the division of assets, child custody and any ongoing child or spousal support.
No-Fault Divorce
In a no-fault divorce, neither party is required to prove wrongdoing by the other in order for the divorce to be allowed. All U.S. states allow for no-fault divorce, though some require spouses to physically separate before they can file.
Divorce Process Step by Step
The legal terminology, precise rules and deadlines involved in the divorce process can vary from state to state. However, most divorces follow this same general path.
Assess Divorce Types
Before you file for divorce, you should consider which type of divorce will best fit your situation.
Divorce can often be a contentious experience, but it is possible to reduce the level of conflict if you and your spouse can commit to a cooperative divorce type. The most common divorce types are:
- Litigation. Traditionally, divorces have involved a full court process where a judge decides how marital assets and custody arrangements should be split. Litigation is often necessary in divorces with a high level of conflict or complex financial or custody disputes. This type of divorce often takes the longest and is the most expensive.
- Mediated divorce. Here, a mediator serves as a neutral third party between the spouses. You and your spouse work together and with the mediator to reach an agreed-upon settlement. Mediated divorce is often faster and less expensive than litigation if both spouses are committed to reaching an agreement.
- Collaborative divorce. Somewhat between mediation and litigation, in a collaborative divorce, each party is represented by their own lawyer. However, the parties also commit to resolving their disagreements without going to court. Collaborative divorce lawyers are specially trained to assist their clients in reaching a compromise.
It is possible to engage in multiple divorce types in some situations. For example, you might intend to undergo a mediated divorce but ultimately need litigation to resolve the issues where mediation fails to produce an agreement.
Determine Where and When To File for Divorce
Divorce is handled locally, and each state sets its own residency requirements. This means you must live in the state (or sometimes a county within the state) for a set amount of time before you can file for divorce there. For example, Texas requires that you live in the state at least six months prior to filing and within your local county for at least 90 days.
In some states, you may be required to physically separate from your spouse before you file for divorce. For instance, Arkansas allows a no-fault divorce to proceed only for spouses who have lived apart for at least 18 months. However, a fault-based divorce in Arkansas is possible without first separating.
File Petition for Divorce
The divorce officially begins when one party files a legal document with the local family law court to request divorce proceedings. In many jurisdictions, this document is called a petition. The party who files the petition is then referred to as “the petitioner” in the proceedings.
A divorce petition asks the court to recognize a legal end to the marriage and outlines the petitioner’s requests for division of property, support and custody arrangements. If you are seeking a fault-based divorce, the petition should include the grounds for the request.
Once the petition is filed with the court, it must also be formally delivered to the other party. The formal delivery, called service of process, is typically handled by a sheriff, process server or certified mail. Each state has its own rules for what constitutes proper service of process.
Petition Responses
After a petition is delivered, the recipient party has to file a response, sometimes called an answer. In legal documents, that party will be referred to as “the respondent.” The time allotted for filing an answer is fairly short, often between 20 and 30 days. For example, Florida requires a response to a divorce petition within 20 days. If no response is filed, the petitioner can file a motion for a default divorce that could grant the divorce on the terms the petitioner requested.
A response agreeing to the petitioner’s terms can result in a faster resolution, as the divorce can proceed uncontested. If you have received a petition for divorce and don’t agree with the terms, you can file a response or counterpetition that asks the courts to intervene and make it a contested divorce.
Discovery and Negotiation
Once the divorce is initiated in the courts, the next step is typically the discovery phase. During this period, each party has the opportunity to request information and documents from the other. Information exchanged during discovery is typically intended to confirm:
- What the other party intends to say about certain issues
- Debts and assets owned by each party
- Witnesses who may be asked to testify if the case goes to court
You might take part in mediation or negotiate through your lawyers during this phase. Information provided during discovery can help define the issues that need to be resolved and may clarify each spouse’s demands.
Temporary Orders
While the divorce is ongoing, it’s sometimes necessary for the court to enter temporary orders that bind the spouses temporarily. Issues that could be subject to temporary orders include:
- Physical use of the family home
- Child custody
- Physical protection of a spouse or child
- Bans on selling, transferring or otherwise disposing of marital property
- Prohibiting the taking on of unnecessary debt
- Disallowing changes to insurance covering family members
Settlement or Trial
If you and your spouse reach an agreement, then your attorneys or mediator can put the agreed terms in writing for you both to sign. The settlement agreement is then submitted to the court for approval, which can often be done without a hearing.
When some or all issues in the divorce remain conflicted, then the case can go to trial. A family law judge hears evidence in the case and then issues final decisions about child custody, support and property division.
Finalizing Divorce
Whether you reach a settlement or go through a trial, the final terms of divorce are laid out in a legal document. This is often called a final judgment of divorce or a divorce decree. That document is entered into court records and the divorce is considered complete.
Depending on the terms of the divorce decree, both spouses may have ongoing responsibilities to each other. This is commonly the case when children are involved or spousal support is ordered.
What Divorce Lawyers Want You To Know
We asked divorce lawyers and mediators to explain elements of the divorce process that often surprise their clients and the common mistakes their clients make. Here’s what we learned.
Divorces Are Not Black and White
Theresa Viera, founder of Modern Legal in North Carolina, shared that clients are most often surprised by how much gray area exists in divorce law. “Many clients look for black-and-white answers because they believe the law has contemplated every possible scenario for family law situations, and unfortunately, this couldn’t be further from reality,” Viera says. “Every family is so unique, thus every application of the law to a family’s situation is unique.”
Agreements Are More Detailed Than You Might Expect
Even if you feel you and your spouse already agree on the terms of your prospective divorce, there might be some finer points or hidden complexities you’ve overlooked. Florida family law attorney Claudia Cobreiro says clients are sometimes less aligned than they think.
“Clients are generally surprised to learn the amount of detail that goes into an agreement during the divorce process,” she notes. “This usually leads them to realize that they may not have an agreement with their soon-to-be ex-spouse, or at least have not discussed all the details necessary to finalize an agreement.”
Divorce Is Emotional
While you may have already dealt with some of the emotion that comes with ending your relationship, the divorce process can stir things up again. Arizona family law attorney Randi Burggraff has seen clients surprised that “divorce isn’t just paperwork. It touches on identity, parenting, finances, even your sense of home. That emotional toll catches people off guard.”
Divorce isn’t just paperwork. It touches on identity, parenting, finances, even your sense of home. That emotional toll catches people off guard.
– Randi Burggraff, Arizona family law attorney
Burggraff encourages clients to separate their emotions from their decisions. One of the biggest mistakes she sees clients make is “letting anger lead the way. Divorce stirs up a lot—betrayal, fear, sadness—and that’s valid. But when decisions come from a place of spite instead of strategy, it usually backfires.”
Discovery Is Slow and Detailed
The discovery phase of litigation is often the longest part of a legal case, and divorce cases are no exception. The amount of information you need to gather and share can be surprising, according to Texas family law attorney Michele Locke.
Locke shared that clients are sometimes “not prepared for how involved the information-gathering process is. We’re talking about financial records, text messages, emails—it’s a mountain of documentation. When you’re fighting over kids, businesses or money, that discovery process is long, expensive and incredibly frustrating.”
Divorce Requires Active Participation
It would be nice if your divorce lawyer could wave a magic wand and tie up your case with a neat bow. Unfortunately, there are limits to what your lawyer can handle on your behalf. You should expect to be gathering documentation and making decisions throughout most of the process.
Sarah Jacobs, co-founder of New Jersey family law firm Jacobs Berger LLC, says that “clients are often also surprised by how actively they need to participate in the process because of the decisions that need to be made, the homework that needs to be done, the research they may need to do into tax consequences and their lifestyle choices, retirement account options, getting information from medical providers, etc.”
Television and Social Media Do Not Prepare You for the Divorce Process
One of the many benefits of working with a knowledgeable divorce attorney is the ability to rely on their practical experience with the legal process of divorce. Many people have an idea of divorce informed more by pop culture and social media than by reality, according to Meghan Freed, founder of Connecticut family law firm Freed Marcroft LLC.
“This creates a real problem where they end up being afraid of things they don’t need to be afraid of, while not focusing enough attention on things that actually matter for their case and their future,” Freed explains.
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Legal Support in the Divorce Process
Once you’ve decided to divorce, your next steps matter. There is a wide range of legal assistance available to help you through the process, and what you need depends on your circumstances. Before you hire a lawyer, consider the following.
Online Divorce Services
Not every divorce requires a lawyer. Most states will allow you to file paperwork yourself, and the best online divorce services help individuals identify and complete the documents necessary to complete a divorce. These may be completely self-service or have limited legal document review and mediation options.
The cost of an online divorce service is usually less than hiring your own lawyer, but they are not ideal for all cases. If you and your spouse have complex finances or difficult child custody decisions to make, or are having difficulty reaching an agreement in general, then an online divorce service might not be the best choice.
Cost of Divorce
Divorce can be expensive. The median cost of a divorce in the U.S. is $7,000, while the average is over $11,000.
Before you hire a divorce lawyer, it’s important to understand how they charge for their services. Most lawyers who handle divorce cases traditionally bill by the hour. The amount you pay in this scenario depends on how much time your lawyer spends on the case.
Many family law firms have begun charging flat-fee rates for divorces instead of charging by the hour. This gives you a lot more certainty from the start regarding how much you will need to pay. This type of billing may not be available for complicated or highly contested divorces.
No matter which form of billing you choose, be sure to request a written fee agreement and ask for clarification on any charges you do not understand.
Tips for Hiring a Divorce Lawyer
If you’ve decided that a lawyer is needed for your divorce, follow these tips to find the right attorney for you.
- Look for relevant experience. If you have unique needs, such as a child custody battle or high-value assets, make sure that you select a lawyer who has experience with that type of case.
- Ask about the types of resolution offered. Some divorce lawyers may encourage collaborative divorce or mediation instead of focusing on litigation. Look for someone whose methods match your expectations.
- Check client reviews. Feedback from former clients can help you see whether their communication style and outcomes line up with what you’re looking for.
- Don’t wait to get advice. Cobreiro warns against waiting until it’s too late for a lawyer to help: “Even if you are unsure whether you will proceed, it is critical to understand your rights and the law surrounding these processes before reaching an agreement with your spouse.“
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Frequently Asked Questions (FAQs) About the Divorce Process
How long does divorce take?
The divorce process timeline can vary from a few weeks to several years. Contested divorces usually take longer due to the time needed for court hearings, negotiations and litigation prep.
Can I use the same divorce lawyer as my spouse?
No. Lawyers cannot ethically represent conflicting sides in a case. If you and your spouse agree to see a mediator instead of hiring lawyers, the mediator will serve as a neutral party and will not represent either of you.
What happens if I reconcile with my spouse during the divorce process?
If you reconcile, then you can request to pause or dismiss the pending divorce case. Not all states allow for the pausing of cases, though.
Do you have to separate before divorce?
Some states require a physical separation period before filing for divorce. For example, North Carolina requires spouses to live separately for one year and a day prior to divorce.
The information on this page does not constitute legal advice, nor does use of or access to this page create an attorney-client relationship between any parties. Information provided on Forbes Advisor is for informational purposes only. Your legal situation is unique and the attorneys and services we rank may not be right for your circumstances. Consult with an attorney to obtain advice on your particular legal matter.
