If you have never gone through a divorce, you probably feel overwhelmed. Divorce is one of the most stressful things a person can do in their life. Having to deal with the emotional aspect of divorce is hard enough, but emotions coupled with money and kids can make divorce a nightmare. Take a deep breath. It’s hard now, but things will get better, especially if you hire a lawyer.
In this article, we’re going to teach you some general information about divorce law. This information will help when you meet with a divorce lawyer at an initial consultation. We’re also going to explain different ways that a divorce lawyer might be able to help your situation. Finally, at the end of the article, we link to our guide which lays out the specific steps to take on how to get a lawyer.
General Information On Divorce Law
Before we proceed, you need to know that the information provided on this webpage is only general information about divorce law. It is not legal advice and it is not even specific advice. Instead, it is general information to help you prepare for a consultation with a divorce lawyer. At the consultation, the lawyer can give you legal advice on your specific situation.
Overview of Divorce Law
The best way to relieve some of your stress is to learn a little bit about divorce. Getting some general information on divorce makes things easier, and can help you better discuss your options with your divorce lawyer.
Here is a high-level overview of the general information on divorce that we’re going to cover. Whether you or your spouse wants to initiate the divorce, the very first thing that has to happen is to fulfill any separation requirements set by your state. These requirements exist in a few states and require such things as not sleeping with your spouse anymore for a certain amount of time.
When you meet these requirements, your lawyer will file a petition for divorce with the court and serve the summons on your spouse. If your spouse argues the divorce, your lawyer can ask the court for temporary relief.
After the court grants temporary relief, the discovery phase occurs and you and your lawyer attempt to uncover all assets held by your spouse. Your lawyer uses this information to negotiate a settlement with your spouse or, in the worst case, prepare for a trail.
After you settle, or the trial concludes, the judge will enter a divorce decree which ends your marriage. The divorce decree is the end of the long process, and both you and your spouse will have to obey the terms outlined in the decree.
There are about 10-15 states which have separation requirements and the rules vary in each of these states. The gist of a separation requirement is that the couple must live apart for a certain amount of time before filing for divorce. The two critical questions that a lawyer can help with is figuring out what constitutes separation and how long separation must last before filing for divorce.
What Is Separation?
In some states, separation means not sleeping in the same bed. In others, separation requires both spouses live apart in different addresses. Now before someone asks, the court is not going to send someone to check on both spouses. The only time the separation requirement becomes an issue is when one spouse argues they are still sleeping together.
Most states also prohibit spouses from having sexual relations during the separation period. If the couple has sexual relations, this can reset the separation period.
How Long Is Separation?
In states with separation periods, the period can range anywhere from 60 days to 18 months. During this time, both spouses must live separate from and not have sexual relations for the duration of the time period before filing for divorce. This prohibition continues for the entire divorce process.
Filing The Petition For Divorce
After meeting any separation requirements, a divorce lawyer will file the complaint to dissolve the marriage.
The petition submitted to the court is called a dissolution of marriage complaint, and it begins the divorce process. Your divorce lawyer can help you with this process, and there are forms available at your local courthouse and usually available online.
There are several things to keep in mind before filing a divorce petition. These items include: listing the grounds of divorce inside the petition, where to file the petition, and your spouse must be served with a summons notifying them of the divorce.
The Petition Must List The Grounds For Divorce
The petition for divorce will list the grounds for divorce inside. The available grounds of divorce depend on state law. In some states, the grounds of divorce you choose can affect how the court splits the marital assets and other related issues.
About 60 years ago, a spouse could only divorce by identifying one or more actions of the other spouse that were deemed incompatible with marriage. The court called these reasons “faults.” Today, many states still allow fault-based divorce, but the laws and rules vary. Here are some common reasons for divorce based on fault:
- Felony conviction of a spouse
- Others reasons which vary by state
The opposite of a fault-based divorce is called no-fault divorce. In a no-fault divorce, a spouse will allege that the couple has irreconcilable differences or incompatibility that justifies dissolving the marriage.
Is there a benefit to filing divorce for fault? Sometimes, but the answer in most states is more often no. In jurisdictions that do provide an advantage, keep in mind that a spouse is less likely to settle if the other spouse argue fault. The reason not settling can be problematic is that going to trial is astronomically more expensive than settling. Also, proving fault at trial is costly and time-consuming.
The Petition Must Be Filed With The Court
Divorce can’t happen without somehow involving the courts. A trial isn’t necessary, but at the very least a petition must be filed with the court. But… which court? That’s one of the most important and overlooked issues regarding divorce.
It is not uncommon to find out after filing for divorce that it would have been more advantageous to file in a different state. Each state has different divorce laws, and some provide immense benefits to certain spouses in a divorce.
Here are several of the ways divorce law can vary by state. Your divorce attorney will be able to explain each of these in detail and apply them to your specific situation:
- Division of the marital assets
- Structure of alimony and how much the other spouse gets
- Child custody issues
- Child support issues such as amounts
In general, a spouse can file the petition for divorce with a court in any state where they or their spouse reside. However, each state has residency requirements. A spouse will need to meet these requirements to file in that state. These residency requirements specify an amount of time required and who must live in the state for that amount of time.
The first part of the residency requirement deals with the amount of time that a spouse must be a resident of the state before filing for divorce. In some states, this amount of time is as short as 30 days. In other states, the amount of time is as long or longer than six months.
The second part of the residency requirement deals with who must meet this time requirement and who can file the petition for divorce. In some states, only the spouse filing divorce has to be a resident of the state for the period. In other states, as long as one spouse is a resident of the state, any spouse can file for a divorce in that state.
Finally, the first spouse to file for divorce usually controls where the divorce occurs. It has happened before that a wife finds out her husband is going to file divorce in a different state, so gets the jump on him and files in her state first.
Serving The Summons on the Other Spouse
After filing the divorce petition with the court, the other spouse must be delivered (served) the summons for divorce. Each state has its own rules regarding how long a spouse has to deliver the summons and how it must be delivered.
Here are the three main ways to deliver a summons to a spouse:
- Hand delivery
Hand Delivery Of The Summons
The most common way of delivering a divorce summons is hand delivery into the hands of the spouse or their attorney. In all states, a spouse is not allowed to deliver the summons themselves and must use someone else.
Who can deliver the summons, since a spouse is not allowed? In many states, a licensed process server must deliver the summons. This requirement is advantageous if a spouse is uncooperative. In other states, a licensed process server is not required and anyone over 18 years old (other than a spouse) can deliver the summons.
In all states, there must be proof that the spouse or their attorney received the divorce papers. In most divorces, the spouse signs a document in the presence of a notary which says they accepted delivery. If a spouse is uncooperative, that probably won’t happen. In these instances, a process server can handle the delivery. They will usually ask for a photo of the spouse and record delivery of the summons on video.
Keep in mind is that the papers usually must be hand-delivered and cannot be stuffed in the mailbox or left on the front steps. There have been times that courts have made exceptions. You need to contact your divorce
Sending The Summons In The Mail
The next most common way of notifying a spouse of a divorce is using the mail.
Using the mail is less frequent because proof they received the summons is still required. How is receipt proven? The summons could be sent using certified mail with return receipt requested. However, if a spouse is uncooperative, they might refuse delivery. Now things are back at square one. It is situations like this that divorce lawyers are very useful. They have a lot of experience in dealing with these situations. A lawyer will know what to do and how to get the papers adequately delivered.
Publishing The Summons In A Local Newspaper
Publishing the notice of the divorce in the newspaper is not common but still a viable route. It is useful in situations where a spouse cannot be found because they skipped town or haven’t been around in years.
Usually, a court must grant permission to publish in the newspaper first. The court will have a spouse exhaust all other avenues first, such as trying to hand-deliver the summons and using the mail.
After having served the other spouse with the summons and when divorce is contested, a divorce lawyer might ask the court for temporary relief.
In granting temporary relief, the court will decide certain matters such as a temporary issuance of alimony, child custody, child support, who pays the lawyer fees, and who gets to live in the house. These decisions are temporary and last until the court finalizes the divorce. Once the divorce is finalized, the terms of the divorce decree will dictate any distribution of marital assets, alimony, child custody, and child support.
There are two types of divorce: a contested divorce and an uncontested divorce.
An uncontested divorce is when both spouses can work out all the details regarding the distribution of marital assets, alimony, child custody, child support, and any other issues themselves.
A contested divorce is when the spouses can’t work these issues out themselves. It might be that the spouses have tried, or it might be that a spouse is unwilling to cooperate at all. In these situations, the divorce is contested and the divorce attorney will
We need to hammer this point home a little bit more. In a contested divorce, a divorce lawyer is invaluable. The judge only has about 30-60 minutes to determine all of these issues. If a spouse doesn’t have all their evidence ready to go, or the evidence is just to smear the other spouse, don’t expect a favorable verdict. A good divorce lawyer will have experience in these types of hearings. They will know which evidence is relevant and how to present it in a timely fashion so the judge can correctly grant temporary relief.
The next stage in divorce proceedings is called discovery. The goal of discovery is to reveal and lay out all the assets of the couple. During discovery, the lawyers for each spouse will send each other questions about finances, assets held, and other inquiries directed at various holdings. The court calls these questions interrogatories, and each spouse must respond within in 30 days.
In the discovery, a spouse or their lawyers might require each other to produce receipts, tax documents, recent purchases, bank accounts, assets held overseas, etc. In some instances, friends, relatives, neighbors, or people with knowledge about these various assets might be called in to give statements under oath.
Either spouses’ lawyers might ask for a deposition. At the deposition, each spouse might be asked certain questions under oath. The questions must be answered truthfully, and they are admissible at trial.
Reaching a Settlement
After discovery, the next step is to create a divorce agreement. The divorce agreement specifies how assets identified in discovery are distributed, whether alimony is paid and how much, and any issues regarding child custody and support.
In about 90% of all divorces in the United States, the spouses settle their differences and avoid having to go to trial. A divorce attorney can explain all the benefits of settling before trial. Here are just a few of the benefits:
- Terms of a settlement are better for each spouse than those set by a court
- The divorce reaches finality faster than going to trial
- Settling is better for kids because the trial is very hostile
Using a lawyer in the settlement process has some big benefits. First, a divorce lawyer has experience in divorce matters. They can use this experience to help get a better deal than would be possible without an attorney. Second, a divorce lawyer doesn’t carry emotional baggage. In negotiation, they can act with a cool head and keep focused on the critical issues that could help get a better deal. Also, taking emotions out of the picture makes a spouse look less of a bad guy (or girl) to the other spouse and any kids.
Sometimes a divorce lawyer might recommend using a mediator. A mediator is a neutral third party that is very experienced in divorce law. The mediator is skilled at helping each spouse come to an agreement on each of the issues in the divorce. Mediators act impartially and help both spouses resolve their issues while not taking a particular side.
Trial as The Last Resort
A trial is the last resort if the spouses can’t settle. At trial, a judge looks at all the evidence and applies the law of the state to reach a judgment. One of the many jobs of a divorce lawyer is to have all the evidence ready and organized for trial. The lawyer will present the evidence convincingly to persuade the judge to side with one spouse over the other.
The judge applies the law of the state, but a lawyer’s arguments can influence their decision. A divorce lawyer is invaluable when many assets are present in the marriage. The divorce lawyer should have a lot of trial experience which they will use to make the best arguments possible.
Final Divorce Decree
A divorce decree is the last stage in the divorce process. The court will issue the divorce decree which legally binds both spouses to the terms and conditions contained inside.
Extra Info – Items To Negotiate During Divorce
Now that we’ve covered the entire divorce process, we want to give a better overview of the types of things that are negotiated during a divorce. This list is not exhaustive but should help you get started when you speak to a divorce lawyer.
Negotiate The Division Of Marital Assets
How to divide up the assets of the marriage is the most significant issue in any divorce negotiation. The marital assets can include physical property, personal property, financial assets, business assets, and debts.
Here are some types of marital assets which a court might consider:
- Physical property which includes homes, land, rental property, etc.
- Personal property which is every other form of tangible property and includes objects inside a house, clothing, vehicles, electronics, etc.
- Financial assets include cash, financial accounts, retirement accounts, money owed to either spouse, etc.
- Business assets include any businesses owned and any educational degrees acquired during the marriage.
- Debt is sometimes considered a marital asset and is divided according to state law.
The terms of the divorce agreement regarding property distribution are determined either through the settlement or at trial by the judge. If both spouses can work out the details on their own, they might end up happier than if the court was involved.
Your divorce lawyer should explain how courts in your state might split the marital assets in your given situation. Based on state law, a court will either use community property rules or equitable distribution rules.
Community Property Rules (AKA: The 50/50 Split)
In the United States, there are nine states which follow community property rules. At a high level, a court in a community property state will split all marital assets acquired during the marriage 50/50, with a minor exception regarding gifts and inheritance.
Equitable Distribution Rules (AKA: The Fair Split)
Any state that doesn’t follow community property rules uses something called equitable distribution to split marital assets. The phrase equitable distribution means “fair, but not necessarily equal.”
The main difference for equitable distribution is the split is not always 50/50. The division could be 60/40, 70/30, or any other split determined by the court. The court will look at numerous factors to make its determination. These factors will vary by state, but they often include:
- Length of the marriage
- Any prior marriage by either party
- Age, health, income levels, skills, employability, and liabilities of each spouse
- Contribution by a spouse to the education or training to increase the earning power of the other spouse
- Sources of income of both spouses, including jobs, retirement, insurance, or other benefits
- Any property, assets, and debts owned by either spouse prior to the marriage
- Which spouse will have custody of the children
- Standard of living established for each spouse
- Whether one spouse stayed home to raise the children and put their education or career on hold
- Any other factor that could make the distribution fairer
Exception for Property Set Apart
An exception shared by states with community property rules and states with equitable distribution rules involves property set apart for each spouse. The laws in each state vary, but the gist is that spouses leave the marriage with any property they owned before the marriage. The exact rules get very technical and a lawyer would know the rules regarding set apart property in a given state.
There is an exception to the exception though. In a community property state, any property set apart is not considered during the 50/50 split analysis. However, in an equitable distribution state, any property set apart is considered part of a spouse’s distribution. Accordingly, this reduces how much of the marital assets, not set-apart, that they will receive.
Alimony, which is also called spousal support or maintenance, is money paid by one spouse with more financial resources to the spouse with fewer resources. Courts have wide latitude in determining whether to grant alimony and determining the payment amount. In deciding alimony, the court aims to accomplish the following goals:
- Compensate for lost earning capability by one spouse as a result of decisions made for the marriage (ex., mom decided to forgo her career to stay home and raise the children).
- Pay for one spouse to continue their education which they put on hold because of the marriage.
- Maintain a standard of living a spouse had during the marriage.
The divorce decree usually states when alimony is to end. If an end date is not inside the divorce decree, the spouse paying alimony will have to petition the court for reconsideration of the payments. Courts will usually terminate alimony payments when the other spouse has achieved one or more of the goals that the court was trying to accomplish, such as financial independence.
Negotiate Child Custody
A divorce lawyer will help negotiate custody of the children. There are different types of child custody, but the two main types are physical custody and legal custody.
Physical custody determines where the child will live. The court generally bases this determination on what is in the best interest of the child. As a result of this determination, the court will assign one parent as the legal custodian, and the child will live with that parent.
In addition to deciding which parent gets physical custody, a court will also determine which parent receives legal custody of the child. Legal custody determines which parent is allowed to make decisions regarding the child’s upbringing. These decisions include choices regarding religion, medical treatments (ex., vaccinations), school choices, doctors, dentists, etc.
What is in the Best Interest of the Child?
In almost every situation involving custody, courts make their determination based on what is in the best interest of the child. This test has been the standard used for the past 50 years by every court in every state.
In answering what is in the best interest of the child, a court will look at numerous factors. Here are a few of the elements and an experienced child custody lawyer can explain these in more detail and apply them to specific facts:
- Wishes of the child
- Wishes of each parent
- Relationship of the child to each parent
- Connection of the child to any siblings
- Harmful conduct by either parent
- Other factors
If you would like to learn more about child custody, you can read our child custody law guide which goes into more detail.
Negotiate Child Support
In almost every state, a parent with custody of a child is entitled to support payments until the child reaches 18 or 21 depending on state law (with some extensions for college or children who have disabilities).
In each state, state law controls child support determinations. The state will have a unique formula to determine child support payments. The state law will also detail how splits between spouses both earning income occur and whether any caps to the monthly payments apply.
If you would like to learn more about child support, you can read our child support law guide which goes into more detail.
How A Divorce Lawyer Can Help
You can get divorced without an attorney, but there are many ways one can help.
Navigate Divorce Law
Divorce law is very complex, and every state has different divorce laws. If you hire an experienced divorce lawyer, they can explain divorce law in your state and help you through the process. It is possible to get divorced without an attorney, especially if your spouse is cooperative and you can settle before trial. But when many marital assets are at stake or when your spouse hires an attorney, you should not get divorced without a lawyer.
Drafting The Divorce Petition And Serving Notice
If you feel uncomfortable creating the divorce petition, then you should hire an attorney. They have years of experience drafting these documents and can simplify the steps you need to take.
Also, many people don’t like to arrange serving divorce papers on their spouse. It can field weird and turn into a fight. Your lawyer will use someone at their firm to serve the papers, or they will use an experienced process server. Either way, using someone else to sever the notice of divorce eliminates so much stress.
Help With Discovery
An experienced divorce lawyer should have a lot of experience in discovery. They will know which questions to ask, how to phrase the issues, and how you should respond to questions. In addition, they can help you uncover anything your spouse might be hiding.
Negotiate A Settlement
As we already said, about 90% of all divorces end in settlement and avoid trial. When you are both mad at each other, it’s hard to agree on things. In these instances, an attorney is better at handling the negotiation than you because they won’t get heated and can negotiate with a level head.
Also, the rules for the distribution of marital assets are different in every state. If you don’t use an attorney, you might give up more than you should. An experienced divorce lawyer will know whether you are getting a good deal or settling for too little.
It should be obvious already that if you go to trial, you should never represent yourself. Hire an attorney. Do yourself that favor. Yes, it will be very expensive, but it can be worth it in the end.
How To Get A Divorce Lawyer
If you’ve come this far, then you should have enough general information about divorce law to assist a lawyer in advising you about your specific situation. Also, you should have a general idea about how a divorce lawyer can help your situation.
But before you start searching for a local divorce lawyer, there is one more step you should take. We highly recommend reading our guide about how to get a lawyer. In the guide, you will learn many things about how to get a lawyer. Here is an example of what you will learn:
- How to find a lawyer experienced with divorce law.
- How to research the lawyer’s background.
- Questions to ask before an initial consultation.
- Questions to ask during an initial consultation.
- Observations to record about the lawyer
- How to decide whether to hire the divorce lawyer.
Once you read this guide, you should be prepared to hire a lawyer to help with your divorce needs.