Definition
Divorce, also called dissolution of marriage, is the legal termination of a valid marriage by a court order, returning both spouses to single status. A divorce does more than end the marital relationship: the court's final decree also resolves how the couple's property and debts are divided and, where applicable, how spousal support, child custody, and child support will be handled. Because marriage and divorce are governed by state law, the grounds, procedures, and outcomes differ from one state to the next.
Legal Meaning
In legal terms, a divorce is a court proceeding that dissolves the legal bonds of marriage. It is distinct from an annulment, which treats the marriage as if it never legally existed, and from a legal separation, in which spouses live apart and resolve financial and parenting issues but remain legally married. A divorce, by contrast, fully ends the marriage so that either person is free to remarry.
Family law, including divorce, is almost entirely a matter of state law, so the rules vary considerably. Every state now allows some form of no-fault divorce, in which a spouse need only assert that the marriage is "irretrievably broken" or that the couple has "irreconcilable differences." Many states also retain fault grounds, such as adultery, cruelty, desertion, or imprisonment, which may influence property division or alimony in those jurisdictions.
The court that grants a divorce generally must have jurisdiction, which usually requires that at least one spouse meet the state's residency requirement before filing. Many states also impose a waiting period between filing and finalization. Learn more about the broader process at our family law practice area and our divorce laws by state guide.
Key Points
- Divorce is governed by state law, so grounds, residency rules, and outcomes vary widely
- Every state allows no-fault divorce based on irreconcilable differences or an irretrievable breakdown
- Some states still recognize fault grounds such as adultery, cruelty, or abandonment
- At least one spouse normally must meet a residency requirement before a court can hear the case
- Many states require a waiting or cooling-off period before the divorce becomes final
- A divorce decree typically resolves property division, debts, spousal support, custody, and child support
- Property is divided under either community property or equitable distribution rules, depending on the state
- Uncontested divorces are faster and cheaper than contested cases that go to trial
Real-World Example
Maria and David have been married for twelve years and have two children. They have grown apart and decide to divorce. Because their state allows no-fault divorce, Maria files a petition stating that the marriage is irretrievably broken; she does not have to prove David did anything wrong. One spouse meets the state's six-month residency requirement, so the court has jurisdiction.
They agree on most issues but disagree about the family home and a parenting schedule. Through mediation, they settle on selling the home and splitting the proceeds and on a shared custody arrangement. After the state's mandatory waiting period, the judge signs a final decree that divides their assets and debts, sets child support, and establishes a custody plan, legally ending the marriage.
Divorce vs. Annulment vs. Legal Separation
| Feature | Divorce | Annulment | Legal Separation |
|---|---|---|---|
| Marital status after | Marriage ended; both single | Marriage treated as never valid | Still legally married |
| Can you remarry? | Yes | Yes | No |
| Grounds required | No-fault or fault grounds | Specific grounds (fraud, bigamy, etc.) | Often similar to divorce grounds |
| Property & support | Court divides marital property and may order support | Limited; courts vary on dividing property | Court may divide property and order support |
| Custody handled? | Yes | Yes, for any children | Yes |
| Common reason chosen | Most common way to end a marriage | Marriage was legally defective from the start | Religious, insurance, or trial-separation reasons |
How Property and Debts Are Divided
How a court divides what a couple owns and owes depends heavily on the state:
- Community property states: A minority of states treat most assets and debts acquired during the marriage as jointly owned, and they are generally divided equally between the spouses.
- Equitable distribution states: The majority of states divide marital property "equitably," meaning fairly but not necessarily 50/50, considering factors like the length of the marriage, each spouse's contributions, and their future financial needs.
In both systems, separate property, such as assets owned before the marriage or received as a gift or inheritance, is usually not divided, though it can become partly marital if it is commingled. A prenuptial agreement can also change these default rules.
Spousal Support, Custody, and Child Support
Beyond property, a divorce decree may address alimony (spousal support), child custody, and child support. Custody decisions are guided by the "best interests of the child" standard, and child support is typically calculated using state guidelines based on income and parenting time.
The Typical Divorce Process
While details vary by state, most divorces follow a similar path:
- Petition: One spouse files a petition or complaint for divorce and serves it on the other.
- Response: The other spouse files a response; the case is "uncontested" if they agree on everything and "contested" if they do not.
- Temporary orders: The court may issue temporary orders for support, custody, or use of the home while the case is pending.
- Disclosure and discovery: Spouses exchange financial information; contested cases may involve formal discovery.
- Negotiation or mediation: Most cases settle through negotiation or mediation rather than trial.
- Trial and decree: If unresolved, a judge decides disputed issues and signs a final decree of dissolution.
Related Terms
Considering a Divorce?
Learn how the process works in your state and connect with a family law attorney who can protect your interests.
Explore Family LawWhen You Need a Lawyer
While some simple, uncontested divorces can be completed without an attorney, many situations call for professional help. Consider hiring a family law attorney if:
- You have minor children and disagree about custody or parenting time
- You own significant assets, a business, real estate, or retirement accounts
- There are allegations of domestic violence, abuse, or hidden assets
- Your spouse has already hired a lawyer
- You signed or want to challenge a prenuptial agreement
- You and your spouse cannot agree on key financial or parenting issues
A lawyer can explain your state's rules, value and divide property correctly, and make sure the final decree protects your rights. For help with costs and selecting counsel, see our guides on understanding legal fees and how to choose a lawyer.
Frequently Asked Questions
What is the difference between a no-fault and a fault divorce?
In a no-fault divorce, neither spouse has to prove the other did anything wrong; it is enough to state that the marriage is irretrievably broken or that the couple has irreconcilable differences. Every U.S. state allows some form of no-fault divorce. In a fault divorce, which some states still permit, one spouse alleges grounds such as adultery, cruelty, abandonment, or imprisonment, and in those states fault can sometimes affect property division or alimony.
How long do I have to live in a state before I can file for divorce?
Most states require at least one spouse to be a resident for a set period before filing, commonly several weeks to a year depending on the state. Some states also impose a waiting or cooling-off period between filing and the entry of the final divorce decree. Because these residency and waiting periods vary widely by state, you should confirm the rule for the state where you intend to file.
How is property divided in a divorce?
It depends on whether you live in a community property state or an equitable distribution state. In community property states, most assets and debts acquired during the marriage are generally split equally. In equitable distribution states, which are the majority, marital property is divided fairly, though not necessarily equally, based on factors such as each spouse's contributions, length of the marriage, and financial circumstances. Separate property owned before the marriage or received by gift or inheritance is usually not divided.
Do I need a lawyer to get divorced?
Not always. An uncontested divorce where both spouses agree on all issues and have no children or complex assets can sometimes be handled without an attorney. However, if you have minor children, significant property, retirement accounts, a business, allegations of abuse, or any disagreement, consulting a family law attorney is strongly recommended to protect your rights and avoid costly mistakes.
How long does a divorce take?
The timeline varies widely. An uncontested divorce may be finalized in a few months once any mandatory waiting period passes, while a contested divorce involving disputes over custody, support, or property can take a year or more. The state's required waiting period, the court's caseload, and how cooperative the spouses are all affect how long the process takes.
State-Specific Information
Divorce grounds, residency requirements, waiting periods, and property rules vary significantly by state. For detailed information, see our comprehensive guide: