State divorce laws vary quite a bit, so it’s important to understand the laws where you live and how they will affect your divorce proceeding. In order to file for divorce in a particular state, you must meet that state’s residency requirement –meaning you must have lived in the state for a certain period of time. For example, in Montana, you only need to show that you’ve lived in the state for 90 days before you can file for divorce there. California’s residency requirement is six months. Maryland and New York, on the other hand, require at least one year of residency before spouses living in these states can file for divorce.
Filing in the Right County
In many states, there are additional local residency requirements. For instance, in California, you must have lived within a county for at least three months before you can file for divorce there. For example, if you and your spouse lived in San Mateo County, California for the past five years, but you moved out of the family home and have been living in Marin County for two months, you would be eligible to file for divorce in California, but you can’t file in Marin until you hit the three-month mark. Your spouse could file in San Mateo County now, or you could wait and file in Marin, which would be more convenient if you plan to continue living there.
Counties also have their own local rules that apply to divorces and may have unique forms that must be turned in. Check your county’s local rules before you fill out your divorce paperwork. You county court website should have helpful information on family law filings.
Which Court Will Handle Your Divorce?
Most counties have several state court divisions, including the family law court, criminal court, traffic court, and general civil court. Judges in criminal courts only deal with criminal cases, and general civil courthouses typically deal with civil lawsuits (personal injury, breach of contract, and real property litigation, for example). So, you’ll have to make sure to take your divorce paperwork to your local family court (sometimes called “domestic court”).
The Divorce Petition
If you’re the one asking for the divorce, you’ll need to file a divorce “petition” or “complaint.” This is an official form that you have to fill in (either in hard copy or online) and sign. The forms vary depending on where you live, so don’t fill them out until you know where you’re going to file.
In your divorce petition, you’ll ask a court to end your marriage, but you’ll also have to tell the court why you want the divorce (your “grounds”) and what you want in the divorce (alimony, custody, child support, or specific property).
Most state and county court websites have at least some information posted about the paperwork you’ll need to get your divorce case started. Some courts have family law resource centers, with copies of forms available and volunteer staff members, who can point you in the right direction. For more specific guidance, you should contact a local family law attorney for advice. Once you have your paperwork ready, you can take it to the court clerk, who will file it for you.
Notify Your Spouse
You need to give your spouse official notice about the divorce filing. Notice requires serving (delivering) copies of your petition and a summons to your spouse. Personal service, where someone hand-delivers a copy of the divorce petition and summons to your spouse, is the preferred method of service. However, other forms of service may be allowed in your state. If your spouse is hiding, or can’t be found for some other reason, many courts will allow you to serve the divorce petition by publication.
Once your spouse has been notified, the court will start your divorce proceeding and may schedule your case for a status conference (a hearing where the spouses (or their attorneys) appear and let the court know how the case is progressing).
In many states, there's a "cooling-off" period which must pass before a court will issue a divorce judgment. For instance, in California, you have to wait six months from the date you filed for divorce before you can receive a divorce decree, but in Utah you only have to wait 90 days. There's no wait at all in Nevada.
You may file for a divorce without an attorney, but it's probably best to at least consult with a lawyer before filing. An attorney can help you figure out where to file, how to fill out the appropriate paperwork, and explain how the process of filing for divorce works in your state.
Questions for Your Attorney
What are the advantages of using an attorney to get a divorce?
Have I met all the residency requirements for my current state and county?
What do I do if I can't find my spouse?