Divorce Process
Written in plain language for general understanding. This is educational content, not legal advice. Based on federal statutes and official sources.
What is this right?
Divorce is the legal process of ending a marriage. Every state now allows no-fault divorce, which means you do not need to prove your spouse did something wrong. You can simply state the marriage is "irretrievably broken" or cite "irreconcilable differences."
Some states also allow fault-based divorce on grounds like adultery, cruelty, or abandonment. In fault states, proving fault may affect how property is divided or whether you receive alimony.
Property division follows one of two systems depending on where you live:
- Community property (9 states including California and Texas) — assets acquired during the marriage are split 50/50
- Equitable distribution (41 states and D.C.) — assets are divided fairly based on factors like length of marriage, each spouse's income, and contributions to the household
Federal law does not directly govern divorce, but federal statutes affect related issues like the tax treatment of alimony (Tax Cuts and Jobs Act of 2017), division of military pensions (Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408), and division of employer retirement plans through a Qualified Domestic Relations Order (QDRO) under ERISA.
When does it apply?
This right applies when:
- You want to legally end your marriage
- You and your spouse need to divide property, debts, and assets
- You are seeking or being asked to pay alimony (spousal support)
- You need to divide retirement accounts or pensions
- You need to understand residency requirements before filing
Common misconceptions:
- "I need my spouse's permission to get divorced" — No. Every state allows one spouse to file for divorce on their own. Your spouse does not have to agree. You may need to meet residency requirements first.
- "Everything gets split 50/50" — Only in the 9 community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin). Most states use equitable distribution, where the court divides assets based on what is fair, not necessarily equal.
- "Alimony lasts forever" — Most modern alimony awards are temporary or "rehabilitative," meant to help the lower-earning spouse become self-supporting. Permanent alimony is increasingly rare and usually reserved for very long marriages.
- "Fault doesn't matter anymore" — While no-fault divorce is available everywhere, some states still consider fault when dividing property or deciding alimony.
What should you do?
Step 1: Make sure you meet the residency requirement. Most states require you to have lived there for a certain period (usually 6 months to 1 year) before you can file for divorce.
Step 2: Gather financial documents. Collect tax returns (at least 3 years), bank statements, retirement account statements, mortgage documents, and credit card statements. You need a complete picture of marital assets and debts.
Step 3: File a petition for divorce with your county court. You will be the "petitioner" and your spouse will be the "respondent." There is usually a filing fee ($100-$400 depending on the state).
Step 4: Try to reach a settlement agreement. About 95% of divorces settle out of court. Mediation or collaborative divorce can save thousands of dollars in attorney fees and resolve things faster.
Step 5: If retirement accounts are involved, you will need a Qualified Domestic Relations Order (QDRO) to divide employer-sponsored plans like 401(k)s and pensions without triggering tax penalties. This is a separate legal document — consult an attorney or QDRO specialist.
Step 6: Update your estate plan after the divorce is final. Change your will, power of attorney, health care proxy, and beneficiary designations on insurance policies and retirement accounts.
What should you NOT do?
Don't hide assets. Courts require full financial disclosure in divorce. Hiding assets is fraud and can result in severe penalties, including the court awarding a larger share to your spouse.
Don't make major financial changes. Avoid large purchases, asset transfers, or closing joint accounts after filing. Most courts issue automatic temporary restraining orders that prevent either spouse from wasting marital assets.
Don't use children as leverage. Threatening to withhold custody to gain a financial advantage will destroy your credibility with the court and could hurt your custody case.
Don't represent yourself in a complex divorce. If you have significant assets, retirement accounts, business interests, or contested custody issues, hire a family law attorney. The cost of mistakes often far exceeds legal fees.
Don't sign a settlement agreement you don't fully understand. Once a divorce decree is finalized, it is very difficult to reopen property division. Get independent legal advice before agreeing to terms.
How New York differs from federal law
New York is an equitable distribution state — not community property:
- Equitable distribution (DRL § 236): Marital property is divided "equitably" (fairly), which is not necessarily 50/50. The court weighs 13 statutory factors including each spouse's income, the duration of the marriage, and each spouse's contributions (including homemaking).
- No-fault ground: The marriage has been "irretrievably broken" for at least 6 months (Domestic Relations Law § 170(7), added in 2010). New York was the last state to adopt no-fault divorce. Fault grounds like cruelty, abandonment, and adultery are still available.
- Maintenance formula (DRL § 236(B)(6)): New York uses a statutory formula to calculate both temporary and post-divorce maintenance based on both spouses' incomes. Duration depends on the length of the marriage.
- Automatic orders: Upon filing, automatic financial restraining orders take effect immediately, preventing either spouse from transferring assets, changing insurance beneficiaries, or running up debt.
Additional Steps in New York
File a Summons with Notice or Summons and Complaint in NY Supreme Court. Uncontested divorces can be completed largely by mail. Visit nycourts.gov for the Uncontested Divorce Packet and self-help resources.
Relevant Law: NY Domestic Relations Law § 170 (grounds), § 170(7) (no-fault), § 236(B) (equitable distribution and maintenance formula)
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