What Are the Divorce Petition Filing Rules in My Area?
The decision to get a divorce is a huge one. Once you make that decision, you’ve crossed the first hurdle, but you must still figure out how to actually get divorced.
Even if you and your spouse agree on all the details, you’ll need to file divorce papers with the court. For information on where, when, and how to do that, read on.
Every state has different rules for divorce
When you got married, you signed a marriage certificate, paid a small fee, and then probably threw a big party. Dissolution of marriage is not so straightforward.
And it’s different in every state. In the following links, we give general information about the divorce process for five states we work with: Texas, New York, California, Utah, and Colorado. Click on any of these links to learn about the steps required for divorce in that state
Every state has its own residency requirements you must adhere to before you petition for divorce. Some states require you to have lived there just a few months, while others require a year or more. Several states, like South Dakota, Washington, and Alaska, do not impose a time requirement. Likewise, some states require both spouses to live in the state, not just one.
Some states allow you to file in any county within the state, while others require you to file for divorce only in the county where you or your spouse live.
So what does this look like in practice? Let’s look at some examples.
In Texas, you can only petition for divorce if you or your spouse lived in Texas for at least the past six months and officially resided in your filing county for at least the last 90 days. This means that if your spouse meets these requirements but you don’t live in Texas, you can still file for divorce in the county where your spouse lives.
In California, the rules are similar to those in Texas. The divorce process in California requires you or your spouse to have lived in California for the past six months and in the county where you plan to file for the last three months. Meeting these requirements allows you to file your divorce forms in the county where you or your spouse live.
In Utah, the residency requirements differ slightly. To qualify for a divorce in Utah, you or your spouse must have lived in the county where you plan to file for at least the past three months. There is no other state residency requirement unless you have minor children. If you have minor children, the child must have lived in Utah with you or your spouse for at least the past six months. Note that this is general information about the state; there are exceptions.
In Colorado, you or your spouse must have lived in the state for at least 91 days before filing for divorce. If you have minor children, your children must have lived in Colorado for at least 182 days prior to the filing date of your divorce petition—or if your children are under six months old, since birth. Meeting these requirements makes you eligible to file for divorce in Colorado.
Grounds for no-fault and fault divorce
To legally end a marriage in any state, you must provide a reason why the marriage is over – the grounds for divorce. Most states allow for both fault divorce and no-fault divorce.
Fault divorce grounds
When you file for a fault divorce, you allege that your spouse has done something wrong, like committing adultery. This presents additional legal hurdles before your divorce can be granted. The upside is, if you can prove fault on the part of your spouse, you may be able to receive increased alimony or unequal distribution of assets, especially if your spouse misused your marital funds. This is a way for a court to help you recoup losses because of your spouse’s inappropriate behavior.
The most common reasons for a fault divorce include the following:
- Physical inability to have sex, as long as the condition was present before marriage but was kept from the other spouse
- Physical pain or cruelty
- Financial abuse or misuse
Filing for a fault divorce does not require you and your spouse to enter legal separation or even live apart prior to filing. Because of the potential for harm to one spouse, courts do not require a separation to test the waters as would normally be required in a no-fault divorce.
No-fault divorce grounds
The most common reason for no-fault divorce is irreconcilable differences. This allows you to file for divorce without blaming your spouse for causing the marriage to end. In some states, living apart for a certain amount of time can also be used as a reason for a no-fault divorce.
Even if you and your spouse have not discussed a divorce, if you’re filing the divorce petition, your spouse may not be able to object to it. Ironically, objecting to a no-fault divorce petition can be viewed by the court as an irreconcilable difference, proving the need for divorce.
Getting a no-fault divorce is usually a simpler, faster, and cheaper process than a fault divorce. That said, if your spouse has caused your marriage to end through a matrimonial offense that caused you physical, emotional, or financial harm, choosing a fault divorce may still be your best option.
When you file for a divorce, most states require you to wait for a certain period of time before the divorce decree is granted by the court. This requirement stems from the notion that, even though you and your spouse have formally begun divorce proceedings, you may eventually reconcile.
Some states have done away with this antiquated divorce requirement, but the majority of states still impose a waiting period. This doesn’t mean that nothing happens during this time. It simply means that in a quick and uncontested divorce, you won’t be able to receive your final decree until the requisite amount of time has elapsed.
The waiting period ranges by state, and some are as long as one year. Most states with a waiting period fall in the 30- to 90-day range. Even if you do have a quick divorce, the process could still take about this much time.
Some states will not grant your divorce until you have separated from your spouse for a certain period of time. For states that require this, it can be as informal as a trial separation where you and your spouse live separately. There usually isn’t a time requirement for this since it’s a more informal process.
Other states require you to formally separate from your spouse before they will consider your divorce case. This could mean you have to move out, separate your finances, and at least begin to divide your assets, property, and debts. Until you take this formal step, a court may not grant your divorce.
Equitable distribution state vs. community property state
To further confuse people looking at divorce, states also differentiate themselves in the way they describe marital property. An equitable distribution state is a state in which the court must divide the property, assets, debts, and liabilities in a fair manner. This does not mean it must be absolutely equal, but it must be balanced. Courts can deviate from this standard if they have good reason to do so, like if your spouse took money out of your shared bank account after the divorce was filed and bought a new sports car.
Community property states divide everything right down the middle. Property, assets, debts, and liabilities are split in half. Nine states adhere to community property rules:
- New Mexico
If you live in a community property state, it’s important to note that some items obviously can’t be split in half. A house, for example, is likely to be sold during the divorce, so each spouse will receive half of the proceeds. If one spouse wants to keep the marital home, the court may allow that but will offset it by granting the other spouse additional assets to even out the value. For example, the spouse not keeping the marital home may get to keep the more expensive vehicle or get a larger distribution of the marital bank account.
A note about loans and property
Here’s something to note about community property states and debt. If you have a loan on, say, your marital car – and your spouse keeps the car – your name is still on the loan. That means you are responsible for any missed payments, and if your spouse skips out on the loan, the bank could come after you for compensation.
In most cases, a judge will note in the divorce decree that one spouse cannot cause financial hardship to the other intentionally by defaulting on a joint loan. This may include the right for you to take possession of the vehicle if your spouse stops paying the loan. That way, even though you must resume loan payments, at least you’ll have the vehicle and can sell it to pay off the loan.
Getting help from Hello Divorce
Divorce can be complicated, confusing, and emotionally draining. Luckily, you don’t have to go through it alone. On our web page, we feature FAQs and general information about all aspects of divorce, from filing fees to court rules to spousal support and child support. We offer several affordable flat-rate online divorce plans as well as flat-rate services like mediation and legal advice. Contact us today to get the support you need to move on to the next stage in your life.