How Does a Divorce Work? 10 Steps That Explain the Process

In most states, to get a divorce:

• At least one spouse has to be a resident of the state where the divorce is filed. 
• One spouse must file a petition for divorce stating the reason for the divorce.
• A judge will sign a written court order (also referred to as a divorce decree) granting the divorce.

It can be hard to go through a divorce, especially when there are children involved. It can also be a confusing time marked by plenty of uncertainty, such as how often you’ll get to see your kids or what kind of financial support the court will order you to give (or receive).

If you’re thinking about getting a divorce, it’s understandable to wonder how a divorce works. The short answer is that it depends on the details of the marriage, such as how many kids there are, how much money each spouse makes, and what property the married couple jointly owns.

That said, the divorce process in most states follows a similar process. Here's an overview of the divorce process step by step, including common mistakes to avoid.

1. Take steps to protect yourself

Once you get to the point where you have decided to proceed with a divorce, you should consider your legal rights and finances. This includes:

• Gathering important documents: These include a copy of your marriage license, your passport, birth certificate, financial statements, your Social Security card, and a copy of your mortgage.
• Opening a separate bank account: This is important largely because only you have access to that money. You want to prevent your spouse from restricting your access to funds. This could happen if your spouse tries to take control during the divorce.
• Creating a budget: Your finances will get more complicated during a divorce. You may take on additional costs, such as renting an apartment and paying lawyer fees, yet your available income might be cut in half (or more). It’s important to figure out a budget that considers how these expenses will affect a lower income.
• Securing private information: This is critical if you have social media, financial, and email accounts that you’ve provided your spouse access to. In a contentious divorce, a spouse might try to spy on the other spouse. Or even worse, lock a spouse out of an important social media or email account that they rely on to communicate with friends, family, or coworkers.
• Taking inventory of your belongings: Part of the divorce process involves dividing assets, including personal property. Take inventory of pricey items, and then confirm the property’s location and value.‍
• Make plans for physical protection, if needed: If you and/or your children may be at risk of physical harm from your spouse, you may need to find a new place to live and/or request a restraining order from the court.

2. Talk to a lawyer

This is the single most important thing to do when contemplating a divorce. Even if you’re not sure if you want a divorce, you should talk to a lawyer to understand your rights and options. The initial consultation can also answer basic questions, including how long a divorce takes to finalize and how to start the divorce process.

If you decide that a divorce is necessary and hire a lawyer, your lawyer can help you file for divorce, explain what happens in a divorce, and walk you through the next steps in the divorce process. Depending on the facts of your case, they can also offer other legal services, like securing a restraining order or temporary child support and/or spousal support.

‍3. Understand state requirements 

Each state has its own laws that control how the divorce process works. Some of the more notable state-specific requirements include:

• Residency: Most states require at least one spouse to be a resident of the state for a minimum period before filing for divorce.
• Mandatory separation: Some states require spouses to be separated for a minimum period before they can divorce.
• Waiting period: Many states have a waiting period before granting a divorce.

Property: States can differ in how they treat property owned separately before marriage, property acquired during marriage, and property division in divorce. For example, in an equitable distribution state, courts divide marital property based on what they consider “fair.” Being in a community property state means that courts focus primarily on dividing assets as close to 50/50 as possible, unless there’s an exception, such as a prenuptial agreement.

4. Determine the grounds for or type of divorce

Most states will only grant a divorce if there’s a reason. However, this reason doesn’t necessarily have to be based on the fault of either spouse (as was usually the case in the past). Below are some of the different ways couples can enter into divorce proceedings:

• Uncontested: An uncontested divorce occurs when both spouses are in full agreement about the decision to divorce and the terms of the divorce. Consider speaking with a LegalShield lawyer about your family law options if you're seeking an uncontested divorce.
• Contested: If there’s any disagreement, including whether to divorce at all, the divorce will be contested and will typically take more time and cost more money.
• No-fault: A no-fault divorce allows couples to get a divorce without having to prove fault of one party or the other. Most states allow for no-fault divorce on the basis of “irreconcilable differences” or “irretrievable breakdown of the marriage.”
• At-fault: An at-fault divorce requires one party to show that the other spouse did something wrong before a court will grant the divorce. Common at-fault reasons for a divorce include abuse, mental illness, infidelity, abandonment, substance abuse, and bigamy.‍
• Legal separation: Some states recognize a situation where a couple remains legally married but lives apart. In some cases, a court may separate marital assets while the couple remains legally married.

5. Start the legal process

Once the decision to divorce is made and the petition is filed, the divorce process has officially started. Unless otherwise ordered by a judge, all hearings and court filings are a part of the public record.

The divorce petition (sometimes referred to as a petition for dissolution) represents a formal request for the court to dissolve the marriage and will typically include the following information:

• The reason for the divorce.
• Any children from the marriage.
• Proposed terms for property distribution and child custody, if applicable.
• Confirmation that the parties meet the residency and other requirements for the divorce.

After filing the petition and serving a copy on the other spouse, the responding spouse will have a set amount of time to file a response, typically called an “Answer.” The amount of time to file an Answer varies, but is usually around 30 days, with extensions commonly available.

6. Manage the short term with temporary orders

Until the judge signs the divorce decree officially ending the marriage, the couple must continue living their lives. During a divorce, something as simple as paying the mortgage or picking up the kids from school can be difficult and stressful. 

As a result, how a divorcing couple continues during the divorce process may require court intervention. If a divorce is contentious, the court may intervene in a couple's daily responsibilities around the children, finances, and property.

Because of these realities of the divorce process, a court may grant one or more of the following temporary orders even before a divorce is complete:

• Temporary custody: If the couple can’t agree on a reasonable custody arrangement during the divorce, the court can issue a temporary order to ensure the children have a consistent routine and that the parents are acting in the children's best interests.
• Child and/or spousal support: A spouse who earns less may ask the court to issue a temporary child support or spousal support (sometimes referred to as alimony pendente lite) order in their favor to help pay for reasonable living and child-caring costs until the divorce is finalized.
• Exclusive possession: If the spouses can’t continue living together but both want to remain at their primary residence, the court may issue an order granting one spouse primary or exclusive possession of the property until the divorce is finalized.‍
• Status quo injunctions: In many states, once a divorce petition is filed, spouses are not allowed to make major purchases or sell or transfer significant marital assets unless they first obtain the other spouse's or the court's permission. These injunctions, or “stays,” are often automatic, with no separate court filing required. They may also apply to decisions that affect the other spouse, such as keeping them on a health insurance plan until the divorce is over.

7. Share information and negotiate

After serving a copy of the petition and filing a response, the discovery phase of the divorce process begins. Discovery refers to the exchange of information during litigation. 

The goal of these disclosures is to have an even playing field of information between the two sides. Information in these disclosures normally includes income information, asset value(s), and debts/liabilities.

8. Reach an agreement

If you’re thinking about filing for divorce, you might be wondering if a settlement is an option or if it’s inevitable that your divorce case will go to trial. Things that might occur to settle a divorce without trial are:

• Mediation: Mediation is a common form of alternative dispute resolution ("ADR") in which spouses meet with a neutral third party to find common ground and settle their case without the stress or cost of a court hearing.
• Property Distribution and Spousal Support: This agreement can address who gets the house or retirement accounts, as well as the amount and duration of spousal support payments.‍
• Final hearing: A court may schedule a hearing at which both sides submit their settlement agreement for approval. Most judges will sign off on the settlement, as long as both sides agree to it. One exception is child support, where the child’s best interests and the legal requirements can override any settlement agreement between the parties.

9. Get a signed decree

Even with an agreement among the parties, a divorce isn’t final until the judge says so. A judge will officially grant the divorce when they sign a divorce decree, a court order dissolving the marriage. This decree serves as legal proof that the marriage is over and can be an important document should one wish to get married again, for example.

10. Tie up loose ends

Even after the divorce is final, you might have additional tasks to complete before beginning the next stage of your life. The following is a “post-divorce checklist” that provides an overview of what these tasks may include:

• Name change: You may want to change your legal name after your divorce.
• Name change on legal documents: If you decide to change your name following a divorce, you’ll need to update your legal documents as well, such as your driver’s license, Social Security card, voting registration, and passport.
• Mailing address: If you’ve moved out of your marital residence, you’ll need to contact the relevant companies and government agencies to inform them of your address change.
• Emergency contacts: While you were married, your spouse might have been your primary emergency contact, and you may want someone different to serve in that role.
• Financial accounts: If you weren’t allowed to remove your spouse from your accounts during the divorce, you can do so once the divorce is finalized. 
• Employment documents: You’ll need to update your employer that you’re no longer married.
• Titles and deeds: Once the divorce is final and property is divided as ordered by the court, now’s the time to make the necessary changes to the applicable property ownership documents to carry out those orders.
• Beneficiary changes: Your spouse may have been your primary beneficiary when married, but if you want to make changes and the court has permitted it, then now is the time to make those changes.
• Estate planning: If you have estate planning documents, such as a Will, Power of Attorney, and a healthcare proxy, you may need to make changes.‍
• Qualified Domestic Relations Order (QDRO): If your divorce required you to split up one or more retirement accounts with your spouse, you probably have a QDRO in effect. After the divorce, you may need to contact your retirement account company and/or employer to carry out the QDRO’s requirements.

How does a divorce with kids work?

For many divorces, figuring out how to divide visitation and custody rights is the hardest part, both from an emotional and legal perspective. If parents are not making decisions that are in their children's best interests, courts may step in.

Some concepts and principles to keep in mind as you go through the divorce:

• Communication with children: How parents communicate with their kids during a divorce depends on how well the parents get along with each other and how mature their children are in terms of understanding what’s going on. The older the children, the more the parents may explain what’s going on, though courts may order the parents not to discuss divorce details unless they directly pertain to the children.
• Communication between the parents: Good communication between parents can reduce the stress children have to endure. In cases where parents don’t get along, the court might recommend they use specialized co-parenting communication apps to help prevent miscommunication and create a record in case future court intervention is needed. 
• Child’s best interest: When it comes to divorce decisions, courts will always prioritize a child’s best interests over the preferences of the parents. In practice, this becomes a “tie breaker” when the parents can’t agree on a particular issue, like visitation, custody, or child support.
• Legal and physical custody: Legal custody refers to a parent’s rights to make important decisions about the child, such as medical treatment, religious upbringing, and where they go to school. Physical custody refers to where a child will live and who is responsible for their daily care and supervision.‍
• Parenting plan: If there are minor children, the spouses can reach an agreement on which parent will have the kids and when. The parenting plan will also include information about how kids will spend holidays and school breaks, as well as how the parents will make decisions about the child, such as medical care.

Common divorce mistakes to avoid

The divorce process can be highly emotional, so it’s easy for one or both spouses to make decisions that aren’t the most logical or for a mistake to occur. Below are some tips to consider when going through a divorce to help avoid major mistakes:

• Emotional decision-making: Wanting to “get even” or fight something based on “principle” is understandable. Just know that if you make a decision based on your emotions, it will likely lengthen the divorce process.
• Hiding assets: Hiding or lying about assets, especially assets the courts or opposing counsel have asked you to reveal under oath, can create big legal problems.
• Not consulting a lawyer: Handling a divorce on your own can save on legal fees, but it will often cost more money in the long run. Legal mistakes often overshadow any legal cost savings during equitable distribution, lost rights concerning children, and lost time having to figure things out on your own.
• Rushing to make a decision: Going through a divorce is not a fun experience. So it makes sense to try to get through it as quickly as possible. However, rushing things can lead to mistakes or settling for less than what you’re legally entitled to receive.
• Making verbal agreements: Make sure to document any verbal agreements that you and your spouse make.‍
• Treating the process like a battle: It might feel like your goal is to win the divorce. But sometimes it makes more sense to work toward an amicable solution with your spouse during the divorce to make the overall process less painful.

How can LegalShield help with a divorce?

Even if you and your spouse agree on everything in the divorce, it still makes sense to get legal assistance for basic tasks, such as guidance on preparing documents to file with the court. This can save time, money, and stress.

A LegalShield membership can help with an uncontested divorce by providing access to legal advice on a variety of matters, including how a divorce works. There are several personal legal plans available, although only our top-tier plans offer assistance with an uncontested divorce.

You don’t know what you don’t know, so the biggest benefit of legal guidance through a divorce is to identify issues you never considered, but could make a big difference in your divorce.

Frequently asked questions

What is the first thing you should do if you want a divorce?

You should take steps to protect yourself and children, which may include securing copies of important documents and personal property, as well as opening a separate bank account. 

You’ll also want to talk to a lawyer as soon as possible to learn your legal options, including whether an annulment is a possibility, instead of getting a divorce.

What happens when you file for divorce?

After you file, your spouse will have an opportunity to respond to your filing. Each side may also exchange discovery, so each party has full disclosure during the divorce process. 

If necessary, one or more court hearings will be scheduled to resolve issues that the spouses can’t negotiate on their own, such as equal distribution or custody of children. After property is distributed and custody determined, the divorce becomes final when the court issues a signed divorce decree.