Divorce can be one of the most complicated legal and financial events in a person’s life. In addition to ending a marriage, divorce can involve decisions about property, debts, housing, retirement accounts, taxes, child custody, child support, and spousal support.
The legal process differs significantly from state to state. Some states use different terminology, different procedures, and different rules for dividing marital property and determining support.
For anyone considering divorce, understanding the general process can make the situation less overwhelming and help identify the issues that may require professional legal advice.
This guide explains the basic divorce process in the United States, common financial issues, child custody, support, property division, and situations where hiring a divorce attorney may be appropriate.
What Is a Divorce?
A divorce, sometimes called dissolution of marriage, is the legal process through which a marriage is terminated.
Once the court enters a final divorce judgment or decree, the spouses are legally divorced.
The judgment may also address other issues, such as:
- Division of marital property
- Division of debts
- Child custody
- Parenting time
- Child support
- Spousal support
- Attorney fees
- Other financial or legal matters
Not every divorce requires a trial.
Many couples resolve some or all issues through negotiation, mediation, or a written settlement agreement.
Is Divorce Governed by Federal or State Law?
Divorce is primarily governed by state law.
Each state establishes its own requirements for filing a divorce case, residency, property division, child custody, support, and other issues.
This means that information about divorce in California, Texas, New York, Florida, or another state may not automatically apply to a person living elsewhere.
Even counties within a state can have different procedural requirements.
For this reason, anyone considering divorce should verify the current rules applicable to their state and court.
How Does the Divorce Process Usually Begin?
A divorce generally begins when one spouse files the required documents with a court.
The spouse who files is commonly referred to as the petitioner or plaintiff, depending on the jurisdiction.
The other spouse receives legal notice of the proceeding and has an opportunity to respond.
The documents may include information concerning:
- The marriage
- Children
- Property
- Debts
- Income
- Requests for custody
- Support
- Other issues
The exact paperwork varies by state and court.
Do You Need Your Spouse’s Permission to Get Divorced?
Generally, one spouse can seek a divorce even if the other spouse does not want the marriage to end.
The exact procedures differ by state, but a spouse usually cannot permanently prevent a divorce simply by refusing to agree.
However, disagreement can make the process longer and more expensive because the court may need to resolve disputed issues.
A divorce may be relatively straightforward when both spouses agree on major issues.
When they disagree about property, children, support, or other matters, litigation may become necessary.
What Is a No-Fault Divorce?
Most U.S. states allow some form of no-fault divorce.
In a no-fault divorce, the spouse generally does not need to prove that the other spouse committed wrongdoing such as adultery or abandonment in order to obtain a divorce.
Instead, the marriage may be described as irretrievably broken or based on another statutory ground recognized by the state.
The availability and terminology of no-fault divorce vary by jurisdiction.
How Is Marital Property Divided?
One of the biggest financial issues in divorce is determining how property should be divided.
Property can include:
- Homes
- Vehicles
- Bank accounts
- Investments
- Retirement accounts
- Businesses
- Personal property
- Real estate
- Other assets
The first question is often whether property is considered marital or separate.
Marital property generally refers to assets acquired during the marriage, although the exact rules vary.
Separate property may include assets owned before marriage or certain property acquired individually during the marriage.
However, property classification can become complicated.
For example, an asset that began as separate property may become mixed with marital assets or increase in value during the marriage.
Equitable Distribution vs. Community Property
States generally use different approaches to property division.
Many states follow an equitable distribution system.
Equitable does not necessarily mean equal.
A court may consider various factors when determining a fair division.
A smaller group of states uses community property rules, under which certain marital assets and debts may generally be divided equally.
Because the rules differ, do not assume that every marital asset will automatically be divided 50/50.
What Happens to the Family Home?
The family home can be one of the most emotionally and financially difficult issues in divorce.
Possible outcomes include:
- Selling the home and dividing the proceeds
- One spouse buying out the other’s interest
- One spouse retaining the home temporarily
- Continuing to co-own the property
- Transferring ownership under a settlement
The decision may depend on the mortgage, equity, income, tax considerations, children, and each spouse’s financial ability to maintain the property.
A home should not be evaluated solely based on its current market value.
Consider the mortgage balance, taxes, insurance, maintenance costs, and potential future expenses.
What Happens to Retirement Accounts?
Retirement accounts can be significant marital assets.
These may include:
- 401(k) plans
- Pension benefits
- IRAs
- Other employer retirement plans
Dividing retirement benefits can require specialized procedures.
Some employer-sponsored plans may require a Qualified Domestic Relations Order, commonly known as a QDRO, to transfer certain benefits without triggering the same consequences as an ordinary withdrawal.
The rules vary depending on the type of account.
Before dividing a retirement account, consider obtaining appropriate legal and financial advice.
How Are Debts Divided?
Divorce does not only involve assets.
Debts may also need to be addressed.
Potential marital debts include:
- Mortgages
- Credit cards
- Auto loans
- Personal loans
- Student loans
- Medical bills
- Business debt
A divorce decree may assign responsibility for a debt between spouses, but that does not necessarily change the contractual relationship with a third-party creditor.
For example, if both spouses are jointly liable on a credit card, a divorce agreement assigning the balance to one spouse may not automatically release the other spouse from the creditor’s contract.
Understanding the difference between the divorce judgment and third-party debt obligations is important.
How Does Child Custody Work?
When spouses have children, custody can become one of the most important issues.
The terminology differs by state, but custody generally involves decisions about:
- Where children live
- Parenting schedules
- Major decisions concerning education
- Medical care
- Religion, where applicable
- Other important aspects of child-rearing
Courts generally focus on the child’s best interests when determining custody arrangements.
The fact that one parent earns more money does not automatically mean that parent receives custody.
Courts may consider many factors, including the child’s relationship with each parent, the child’s needs, parental stability, and other circumstances established by state law.
What Is Parenting Time?
Parenting time refers to the periods when a child spends time with each parent.
A parenting plan may specify:
- Weekday schedules
- Weekends
- Holidays
- School vacations
- Birthdays
- Summer schedules
- Transportation responsibilities
- Communication with the child
Detailed parenting plans can reduce future disagreements by clearly explaining what each parent is expected to do.
How Is Child Support Determined?
Child support rules vary by state.
Courts may consider factors such as:
- Each parent’s income
- Number of children
- Parenting time
- Health insurance
- Childcare expenses
- Other legally relevant financial circumstances
Child support is generally intended to help cover expenses associated with raising children.
It may contribute toward housing, food, education, healthcare, transportation, and other qualifying costs.
Do not rely on a general online estimate as a final determination of what you will owe or receive.
What Is Spousal Support?
Spousal support, sometimes called alimony or maintenance, involves financial support paid by one spouse to the other after or during a divorce.
Eligibility and calculation methods vary widely by state.
Courts may consider factors such as:
- Length of the marriage
- Each spouse’s income
- Earning capacity
- Financial needs
- Standard of living
- Age
- Health
- Contributions made during the marriage
- Other factors established by state law
Spousal support is not automatic in every divorce.
Can You Get a Divorce Without a Lawyer?
Yes, some people handle their own divorce.
An uncontested divorce with no children, limited assets, and full agreement between spouses may be relatively straightforward.
However, self-representation becomes more complicated when the case involves:
- Significant assets
- A business
- Retirement accounts
- Real estate
- High income
- International property
- Complex taxes
- Child custody disputes
- Domestic violence allegations
- Significant debt
- Disagreement over support
A mistake in a divorce agreement can have long-term financial consequences.
When Should You Hire a Divorce Attorney?
Consider speaking with a family law attorney if:
- You and your spouse disagree about major issues
- You have children
- You own a business
- You have substantial assets
- You have multiple retirement accounts
- You have complicated debts
- You expect a dispute over custody
- You are seeking or opposing spousal support
- Your spouse has hired an attorney
- You are being asked to sign a settlement
- You suspect your spouse is hiding assets
An attorney can explain the applicable state law and help you understand the consequences of proposed agreements.
What Is Divorce Mediation?
Mediation is a process in which a neutral third party helps spouses negotiate disputed issues.
A mediator generally does not represent either spouse.
Instead, the mediator helps facilitate communication and identify potential agreements.
Mediation can sometimes be less expensive and less adversarial than litigation.
However, mediation is not appropriate for every situation.
If there is significant power imbalance, coercion, domestic abuse, or unwillingness to negotiate honestly, other legal processes may be more appropriate.
Be Careful Before Signing a Settlement
A divorce settlement can determine important rights for many years.
Before signing, understand:
- Property division
- Debt responsibility
- Retirement accounts
- Child custody
- Parenting schedules
- Child support
- Spousal support
- Tax consequences
- Insurance
- Future obligations
- Dispute-resolution procedures
Do not sign simply because you want the divorce process to end.
If you do not understand a provision, obtain professional advice before signing.
Protect Your Financial Records
Before and during divorce proceedings, organize your financial information.
Useful documents may include:
- Tax returns
- Bank statements
- Investment statements
- Retirement statements
- Mortgage records
- Loan documents
- Credit-card statements
- Pay stubs
- Business records
- Insurance documents
- Property records
Keep copies of important documents in a secure location.
Do not illegally access your spouse’s private accounts or passwords.
Divorce and Taxes
Divorce can have tax consequences.
Issues may involve:
- Property transfers
- Selling a home
- Retirement accounts
- Child-related tax benefits
- Investment gains
- Spousal support
- Filing status
Tax treatment can depend on current federal and state law.
Before finalizing a major financial settlement, consider consulting an appropriate tax professional in addition to your family law attorney.
Final Thoughts
Divorce involves much more than ending a marriage.
It can affect your home, finances, retirement, taxes, children, and future financial security.
The process varies significantly from state to state, and an agreement that appears simple may have long-term consequences.
If you have a straightforward uncontested divorce with limited assets, handling some or all of the process yourself may be possible. But when children, substantial assets, retirement accounts, businesses, significant debts, or disputes are involved, professional legal advice can be extremely valuable.
Take time to understand the consequences before signing a divorce settlement or agreeing to a permanent custody or financial arrangement.
This article provides general educational information and does not constitute legal, financial, or tax advice. If you are considering divorce, consult a qualified family law attorney licensed in your state for advice regarding your specific circumstances.