What's Required to Get Divorced?

by Beverly Bird
Be sure you meet your state's residency requirement before proceeding.

Be sure you meet your state's residency requirement before proceeding.

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To get divorced, you need a reason that’s acceptable to the court. You need a court that can legally take jurisdiction over your matter and make decisions regarding it; you accomplish this by living in the state where you file for a prescribed period of time. You must also address and resolve all issues of your marriage, including custody and parenting time with your children, before a court will allow you and your spouse to legally part ways.

Residency Requirements

All states have residency requirements before you can file for divorce, and except for South Dakota and Washington, which simply specify that one spouse be "a resident," all states require that you live there for a specified period of time first. For example, you can’t leave your spouse, move to Nevada and file for divorce the next day; you must wait six weeks. If you’re filing in the state where you married and lived together, this is usually no problem. However, the residency requirements in some states are much lengthier: up to a year in Nebraska, New York and West Virginia. If you and your spouse marry, relocate to New York, then decide after six months that it’s not working out, you’d be required to wait an additional six months before you could file.

Grounds

Your grounds are your reason for wanting a divorce; they are included in your divorce complaint or petition. This is a very easy requirement to meet because all states recognize some version of no-fault divorce. In most states, the only reason you need is that you believe your marriage is over. However, some states also require that you live separately for a period of time first. More than 30 states also give you the option of filing on fault grounds, such as adultery, cruelty or abandonment.

Waiting Periods

Some states have an additional waiting period after the filing of a petition or complaint before they will grant a divorce. These rules ensure that spouses have time to consider what they’re doing. The average wait is one to three months, but in some states, this varies depending on whether your divorce is contested or not. In New York, you must wait a year for a consensual divorce, and in Virginia, you must wait 18 months if you or your spouse is contesting your divorce.

Property

In states that impose waiting periods, many spouses use the time to try to negotiate a settlement so they can avoid trial. No state allows you to divorce until you tell the court how you’re going to divide your property and debts. If you can’t reach an agreement, the court will decide for you. When a judge must decide, the laws regarding these issues vary from state to state. Nine states are community property states; they divide marital property and debts evenly down the middle. The remainder are equitable distribution states. Judges can use their own discretion, based on whatever they think is fair. Alaska is a hybrid state; judges will rule based on equitable distribution principles when spouses don't enter into an agreement to treat all their assets and debts as community property.

Support

You must also decide issues of support before you can be divorced. All states require you to come to terms regarding child support if you have children, but these laws vary as well. Eleven states will order parents to pay for college costs in addition to child support, but the others will not. Some states, such as Massachusetts and Kentucky, will consider divorce fault grounds and marital misconduct when deciding alimony. Kentucky will not award alimony to a spouse who caused the breakup of the marriage. If you can’t come to an agreement on your own regarding these issues, a court will rule on them for you.