Legal Requirements for Divorce

There are a few legal requirements which must be met to file for a divorce in most states.

By , Attorney · Cooley Law School

Whether you've decided to file for divorce, or your spouse just broke the news that the relationship is over, your emotions are likely high, and at least one of you is reeling with confusion over what to do. Divorce is available to couples in all 50 states, but the process may vary depending on where you live. However, there are certain legal requirements you must meet to file for divorce in most states.

Under most state laws, parties must file a divorce action in the local court where they reside.

Residency Requirements are Critical

Before filing legal documents for divorce, you must ensure that you meet your state's residency requirements; otherwise, the court won't have the authority to review your case.

Typically, filing spouses must demonstrate that they have resided in the state for a specific amount of time (usually six months to one year) before filing the divorce petition, and in the county where they file the action for ten days to three months before filing.

You May Have to Wait

There's no doubt that once you decide to file for divorce, you'd like the process to end quickly. Although there may be some exceptions, most states require couples to wait before the court finalizes the divorce. Depending on where you live, you could have no waiting period, or you may need to wait it out for up to one year before the judge will sign your divorce paperwork. For example, in Michigan, couples filing for divorce who do not have children must wait at least 30 days before the judge finalizes the divorce. Divorcing spouses with children will wait a minimum of six months (typically more) for the divorce to conclude.

States implement waiting periods so that spouses have time to negotiate the specifics of the divorce, like child custody, child support, property division, and other divorce-related issues. In some cases, divorcing spouses may repair their broken relationships during the waiting period and reconcile. In reconciliation cases, couples can withdraw the divorce petition and continue with the marriage.

Grounds for Divorce

Before the court grants your petition, the filing spouse must list a legal reason—or "grounds"—for the divorce. There are typically two types of legal reasons—fault and no-fault. Every state offers divorcing spouses the option to file a no-fault divorce, meaning neither spouse is responsible for the break-up. Generally, no-fault grounds include irreconcilable differences, incompatibility, or separation, which mean that the parties have marital difficulties which they can't resolve, and as a result, there is no possibility of reconciliation. No-fault divorce is a streamlined process that helps couples obtain a divorce without the need for evidence, testimony, or expert witnesses to prove that one spouse is guilty of marital misconduct.

A fault divorce is available in some states, and the requirements vary depending on where you live. Some examples of fault-based divorce grounds include adultery, drug or alcohol addiction, neglect, or abandonment.

Filing for divorce can be tricky, especially if you're not familiar with your state's divorce laws. If you're considering navigating the waters of divorce, talk with a family law attorney in your state to learn your options before you file.

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