Divorce

What are the basic steps for filing for divorce?

While divorce laws vary by state, here are the basic steps, generally:

1. First, you must meet the residency requirements of the state in which you wish to file.
2. Second, you must have a legally acceptable reason (“ground”) to end your marriage. The grounds can be fault-based (such as adultery or cruel treatment) or no-fault-based. The most common no-fault divorce ground is often called “irreconcilable differences,” an “irretrievable breakdown” of the marriage, or something similar.
3. Third, you must file divorce papers and have copies served on your spouse. (To learn more about filing a summons, preparing a petition, and service of process, go to the Starting the Court Case page in our Preparing for Court - By Yourself section.)
4. Fourth, how the divorce goes forward will depend on whether your spouse agrees to the divorce and/or whether or not your spouse responds to the divorce complaint once it is served upon him/her. Here are a few different possibilities of what could happen:
   • If your spouse agrees with everything in the divorce papers, s/he should sign the papers and send them back to you and/or the court. This is called an “uncontested divorce.” If there is property that you need divided, if custody of children is an issue, or if you need financial support from your spouse, you will have to agree about those issues in an out-of-court settlement in order to have an uncontested divorce. However, when there are children of the marriage, some states require that custody be decided as part of the divorce. Therefore, in those states, you could not get an uncontested divorce if you cannot agree upon a custody arrangement.
   • If a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway. You should speak to a lawyer in your state about how long you have to wait to see if your spouse answers the divorce papers before you can continue with the divorce.
   • If your spouse disagrees with anything in the divorce papers, your spouse will then have the opportunity to file papers telling his/her side and asking for the outcome s/he wants. This is called a “contested divorce.” Even if your spouse agrees that s/he wants to end the marriage, disagreement on property, finances, custody, or other issues means you may have to attend a series of court appearances to have a judge decide those issues.

What happens with custody and child support after filing for divorce?

Custody
If you and your spouse can agree on a custody/visitation schedule, the judge will usually approve it as long as the judge agrees that it is in the best interest of the child. If you can’t agree on a custody/visitation schedule, you might be able to ask the judge for a temporary order while the divorce is pending. The final custody order would either be decided by the judge, after a trial, or by the parents coming to an agreement. Although many states are leaning towards shared custody, also called joint custody, a judge may agree to one parent having sole custody in certain circumstances. You can find more information on custody and visitation in your state, including what the judge will likely consider when evaluating the best interest of the child, in our general Custody section. When you go to your state’s specific Custody section, you will also find information on how abuse may be considered by the judge when deciding custody and visitation.

Child support
The primary caretaker of the child (the parent with whom the child lives the majority of the time) can usually request a temporary child support order while the divorce is pending. Most states have a specific formula that the judge must follow when issuing a child support order. Go to our Child Support section to see if we have additional information about child support in your specific state.

Can I take my children out of the state once a divorce is filed?

Once a divorce is filed, most states have “automatic orders” that go into effect so that no major changes happen while the divorce is pending. Automatic orders limit the parties’ behavior and actions. One common automatic order is that neither parent can remove the child from the state (jurisdiction) for any period of time while the divorce is pending unless the judge or the other parent consents.

In terms of relocating with your child to another state, it can be very problematic to take children across state lines if the other parent doesn’t agree with the move. It might even be a crime to move the child without the other parent’s or the judge’s consent depending on your state’s parental kidnapping or custodial interference laws. In addition, judges usually do not like when children are moved from the state where the divorce case is pending, even if no crime was committed. If the judge is dissatisfied with your actions, this can make a custody case more difficult for the parent who took the children out of state, even if the parent moved the child for what s/he thought was a “good reason.” You can find general information on this topic on our Parental Kidnapping page.

If you have children and you are thinking about filing for divorce, or you are already in the middle of a divorce, please contact a lawyer before taking your child out of the state. A lawyer can advise you of any possible consequences and explain what options you may have in your case. You can visit our Finding a Lawyer page and select your state from the drop-down menu to find non-profit legal organizations as well as the Bar Association’s lawyer referral service for private attorney referrals. You can also contact us through our Email Hotline if you need more specific information or referrals for your particular situation.

Where can I find additional information about divorce?

The National Council of Juvenile and Family Court Judges has a free, in-depth information packet called “Managing Your Divorce: A Guide for Battered Women,” which you may find helpful, especially if you have to represent yourself in your divorce. Although it was published in 1998, the information is still relevant today.