Divorce in the United States: an overview

Where a divorce can be filed

A divorce is filed in a state court that has jurisdiction. The Supreme Court has long held that a state may grant a divorce when at least one spouse is domiciled there (Williams v. North Carolina, 1942), and it has upheld reasonable residency requirements (Sosna v. Iowa, 1975). Typical requirements are residence in the state for six months, and in the county for a shorter period; California, for example, requires six months in the state and three months in the county (Cal. Fam. Code § 2320), and Texas requires six months in the state and 90 days in the county (Tex. Fam. Code § 6.301).

Courts must also have authority over each issue. A court generally needs personal jurisdiction over a spouse to order support or divide certain property, and child custody follows a separate set of rules, discussed below.

Grounds: no-fault and fault

Every state now permits some form of no-fault divorce. New York was the last state to add one, in 2010, by allowing divorce when the relationship has broken down irretrievably for at least six months (N.Y. Dom. Rel. Law § 170(7)). California allows divorce for "irreconcilable differences" (Cal. Fam. Code § 2310), and Texas for "insupportability" (Tex. Fam. Code § 6.002).

Some states also keep fault grounds, such as adultery, cruelty, abandonment, or imprisonment. Fault may be relevant to the divorce itself or, in some states, to how property or support is decided, and it can matter more in states that do not use a pure no-fault approach. In others, fault is largely irrelevant.

The usual steps

The process generally follows this sequence, with details varying by state:

1. Filing. One spouse files a petition or complaint and pays a filing fee, or asks the court to waive it based on financial hardship.
2. Service. The other spouse must be formally notified through service of process, and has a set time to respond.
3. Temporary orders. Courts can issue temporary orders on matters such as support, use of the home, or parenting time while the case is pending. Some states also impose automatic orders that restrict transfers of property after filing.
4. Disclosure and discovery. Spouses exchange financial information, and in contested cases may use depositions, document requests, or expert appraisals.
5. Settlement or trial. Most cases are resolved by a written settlement agreement, often reached through negotiation or mediation. Unresolved issues go to a judge.
6. Judgment. The court enters a final judgment (a divorce decree) incorporating the agreement or its own rulings. Some states require a waiting period before it becomes final; for example, California has a six-month waiting period (Cal. Fam. Code § 2339) and Texas generally has a 60-day period (Tex. Fam. Code § 6.702).

Dividing property and debts

Most states use equitable distribution, in which the court divides marital property fairly after weighing factors such as the length of the marriage, each spouse's contributions, and each spouse's earning capacity. Nine states use community property, which starts from an equal division of what was acquired during the marriage. Separate property is generally kept by its owner, but the line can blur when separate and marital funds are mixed.

Debts are divided too, but a divorce judgment does not change what a creditor can collect. A creditor can still pursue anyone who signed the original loan, so a spouse ordered to pay a joint debt who does not pay can leave the other spouse exposed.

Retirement accounts, taxes, and military benefits

Employer retirement plans governed by ERISA can be divided only with a QDRO (29 U.S.C. § 1056(d)(3)). Transfers of property between spouses as part of a divorce are generally not taxed at the time of transfer (26 U.S.C. § 1041), although the person who receives the property may owe tax later when it is sold or withdrawn. For divorce or separation agreements made after 2018, alimony is no longer deductible by the payer or taxable to the recipient under federal law, although state tax rules may differ.

Federal law lets state courts treat military retired pay as property in a divorce, with limits (10 U.S.C. § 1408). The Servicemembers Civil Relief Act also gives active-duty service members protection from default judgments (50 U.S.C. § 3931).

Alimony

Spousal support depends on state law and varies widely. Courts typically consider the length of the marriage, each spouse's income and earning capacity, the standard of living during the marriage, age and health, and contributions such as supporting the other spouse's career or raising children. Support may be temporary, for a set period to allow retraining, long-term, or not ordered at all. Many states have ended or limited permanent alimony, and some have formulas for amount and duration.

Children: custody, parenting time, and support

Courts decide custody and parenting time based on the best interests of the child, using factors set by state law, such as the child's relationship with each parent, stability, each parent's ability to meet the child's needs, and any history of abuse. Many states encourage shared parenting where it is safe.

Which state may decide custody is governed by the Uniform Child Custody Jurisdiction and Enforcement Act, adopted in nearly every state, which generally gives priority to the child's "home state" (where the child has lived for the previous six months). Federal law requires each state to use guidelines to calculate child support (42 U.S.C. § 667), usually based on both parents' incomes and the parenting-time schedule. Child support and custody orders can generally be modified later if circumstances change substantially.

Alternatives to a full court case

Mediation uses a neutral person to help spouses reach an agreement, and many courts encourage or require it, especially for custody. Collaborative divorce uses lawyers and other professionals to settle without going to court. Many states offer simplified procedures for couples with no children, little property, and a short marriage. A judge generally still reviews and approves the agreement, and in particular must approve arrangements for children.

After the divorce

After a divorce is final, people commonly update beneficiary designations, wills, titles, insurance, and bank accounts, and may restore a former name. Orders for support and custody continue and can be enforced through the court, including by wage withholding, contempt, and other remedies. Some orders can be modified if circumstances change, while property divisions are generally final.