Divorce: It's how you legally end your marriage. In many states, though, couples find that it's not always a matter of simply filing a "divorce." Instead, they have options as to what type of divorce they can file.
If your state offers more than one way to dissolve your marriage (note that divorce in many states is also called "dissolution"), the type of divorce you pursue will likely depend on your relationship with your spouse. For example, if you and your spouse agree on all the issues, your divorce might be "uncontested." On the other hand, if you don't even know where your spouse is, you might find yourself seeking a "default divorce."
Here's a breakdown of the most common types of divorce to help you figure out which choice might be right for you. Though their procedures might differ, they all have the same final outcome: the issuance of a divorce decree that formally ends your marriage.
If you and your spouse are at loggerheads over one or more marital issues (such as child custody or property division), to the point that you can't come to an agreement, then it will be up to a judge to decide those issues for you. This is what's meant by a contested divorce.
Contested divorces are stressful, time-consuming, and expensive (think mounting attorneys' fees). You'll go through a lengthy process of exchanging financial and other relevant information, and might have to attend court hearings to decide how to handle matters such as spousal support while the divorce is pending.
If you can't resolve the case, there will be a court trial. The burdens of a contested divorce are why the vast majority of divorce cases ultimately settle (sometimes with the help of mediation, discussed below) at some point before trial.
Most people in contested divorces end up working with an attorney to help them navigate the courts and make sure they don't leave anything on the table. Some state courts provide forms that you can use for a contested divorce, but these one-size-fits-all documents aren't always the best choice when the spouses have a lot of issues to decide.
Most states offer spouses the option of filing an "uncontested" divorce. To qualify for an uncontested divorce, you and your spouse must settle up-front all your differences on issues such as custody and visitation (parenting time), child support, alimony, and property division. You'll then incorporate the terms of your settlement in a written "property settlement agreement" (sometimes called a "separation agreement"). Because there's nothing to fight about in court, uncontested divorces usually are less expensive and less stressful than traditional divorces.
Once you've arrived at a settlement, you can file your divorce petition with the court. Many states have specific forms for uncontested divorces, but others might instead have you check a box indicating the matter is uncontested on a standard divorce form. In some states, spouses file jointly; in others, only one spouse files. Check with the clerk of the court to find out the procedure in your state.
Courts almost invariably fast-track uncontested divorces, so you can get divorced in a relatively short period of time. In some states, you might not even have to make a court appearance—instead, any information you need to give to the court is provided by filing an affidavit (sworn statement) with the court clerk.
In two states—Ohio and Alaska—an uncontested divorce is called a "dissolution," while a contested divorce is called a "divorce." In all other states, "dissolution" can refer to either contested or uncontested divorce.
Many states offer a special type of expedited uncontested divorce procedure—sometimes called "summary divorce," "simplified divorce," or "summary dissolution"—to couples who haven't been married for very long (usually five years or less), don't own much property, don't have children, and don't have significant joint debts. Both spouses need to agree to the divorce, and must file court papers jointly.
A summary divorce is a great option if you qualify under your state's laws. It involves a lot less paperwork than other types of divorce—a few forms are often all it takes. For this reason, summary divorces are easy to do without the help of a lawyer. You can usually get the forms you need from your state court's official website, or from the local family court clerk's office.
A pro se divorce (sometimes called a "pro per" divorce) is a divorce in which one or both spouses represent themselves in court. Because there is no law requiring anyone to have an attorney to handle their divorce, any kind of divorce can also be a pro se divorce.
Just because you can divorce without an attorney, though, doesn't mean you should. Pro se divorce is often a good option for uncontested divorces. It's not a good option if you have a lot of issues to resolve, are afraid to speak on your own in court, or don't have time to devote to learning the court's rules and filling out paperwork.
A default divorce occurs when one spouse files for divorce and the other spouse (the "defendant" or "respondent") fails to answer the divorce petition. This situation might arise when the filing spouse doesn't know where the other spouse is, or when the defendant spouse simply refuses to cooperate with the proceedings.
Each state has its own procedures for dealing with a non-responsive spouse. In most states, the filing spouse must attempt to deliver the divorce documents to the defendant spouse or get the court's permission to serve the missing spouse by publication. After the filing spouse demonstrates an inability to engage the defendant spouse, the filing spouse can request the court for a default judgment. At that point, the judge usually has the power to grant the divorce despite the fact that one of the spouses hasn't participated in the court proceedings.
Default divorce might sound ideal—after all, you won't have to face your spouse in court. However, in most cases, you'll still have to jump through all the procedural hoops required to attempt to give your spouse notice and the opportunity to participate.
To get a divorce in your state, you'll need to have a legally recognized "ground"—reason—for ending your marriage. Each state's laws set out the permissible grounds for divorce. In the not-too-distant past, people who wanted to dissolve their marriage had to show that the other spouse was guilty of wrongdoing, such as adultery or cruelty. Needless to say, accusing your spouse of misconduct could make for quite a contentious divorce.
Now, however, all states offer some form of "no-fault" divorce. In a no-fault divorce, instead of proving that a spouse is to blame for the marriage failing, you merely state that you and your spouse have "irreconcilable differences," or have suffered an "irremediable breakdown" of your relationship.
But note that just because the grounds for a divorce might be no-fault, that doesn't mean the case is uncontested. You still have to resolve all your other marital issues.
Before filing for divorce, options are available to you if you need assistance in trying to resolve your differences. These are referred to as "alternative dispute resolution" (ADR) methods. One of those is divorce mediation. Here, a trained neutral third party (the mediator), sits down with you and your spouse to try to help you resolve all of the issues in your divorce.
It's not the mediator's job to make decisions for you. Rather, mediators offer guidance and help you communicate with each other until, hopefully, you reach a meeting of the minds. A successful mediation usually ends with the preparation of a settlement agreement. Having a settlement in hand will allow you to take advantage of any expedited procedures your state might have for uncontested divorces.
Co-mediation is similar to traditional mediation, but involves two or more mediators working together to help the couple reach agreement. Co-mediation isn't used frequently in divorce, but might be a good alternative if you have a specialized or complex issue that needs to be resolved. For example, if you and your spouse can't agree on custody issues involving your child with special needs, it might be helpful to have an expert in childhood development (or other related specialty) act as a second mediator.
Mediation is an excellent choice for many couples, but it's not for everyone. If there's a history of (or risk of) domestic violence or an overall imbalance of power between the couple, mediation might not be the best option.
Another ADR option is "collaborative divorce." In a collaborative divorce, the spouses hire their own lawyers. The lawyers are specially trained in collaborative divorce, and agree to work with the sole purpose of trying to settle the case. Each spouse agrees to disclose all information relevant to resolving the issues in the divorce, and to attend as many meetings as necessary to attempt to reach a settlement.
Both the spouses and their attorneys agree that if the divorce doesn't settle through the collaborative process, the original attorneys will withdraw from the case. The spouses will have to hire different attorneys to take the case to court. This is done to ensure that all participants, including the attorneys, are acting in good faith, with nothing to gain from veering away from the goal of settlement.
Many couples who consider collaborative divorce also consider mediation. Both have advantages and disadvantages over the other. In particular, mediation tends to be more informal and flexible, largely because lawyers aren't involved (or are less involved) in the process. And, like mediation, collaborative divorce probably isn't a viable option for couples who have an imbalance of power or when there has been (or there is a risk of) domestic violence.
In states that allow it, a third form of ADR is "divorce arbitration." This option is the most similar to a trial, because the arbitrator (usually an attorney or a retired judge) will make a decision on the marital issues, after being presented with the facts of the case and reviewing the documentation the parties would ordinarily produce at trial.
Arbitration is typically conducted in an informal—and thus less intimidating—setting than a courthouse (usually the arbitrator's office). As with the other forms of ADR, it has the benefit of allowing you the flexibility to picking meeting times that fit your schedules. This makes it more cost-effective than having to make court appearances, which often involve sitting around racking up attorneys' fees while waiting for a judge to become available.
The potential downside to arbitration is that, unlike other forms of divorce, the arbitrator's decision is almost always final. When your divorce is finalized by a judge, typically either party can appeal the decision. However, when you agree to arbitrate, you give up your right to appeal the arbitrator's decision. It's something of a roll of the dice in that regard, which is why arbitration isn't as popular as the other ADR methods.
In light of the United States Supreme Court's ruling in Obergefell v. Hodges, 576 U.S. 644 (2015), all states recognize same-sex marriages. In turn, the procedures for divorcing as a same-sex couple are the same as they are for an opposite-sex couple.
If you find that permanently ending your marriage isn't the right option for you, you always have the option of living separate and apart from your spouse. Just as there are many types of divorce, there are many types of separation.
Often, moving out without any court intervention is called a "trial separation." A trial separation doesn't sever your financial ties to your spouse, nor does it release you from the responsibility of supporting any children of the marriage.
Some states allow you to legally separate from your spouse. In these states, all the issues in your separation—such as property division, alimony, and child custody and support—will be decided by a judge. Alternatively, you and your spouse can present a proposed settlement agreement for the judge to approve. The process is similar to a divorce, but doesn't end your marriage, meaning you can't marry anyone else.
Annulments and divorces are similar in that they result in your not being married. They're different, though, because while a divorce terminates a valid marriage, an annulment is a judicial declaration that the marriage never existed in the first place.
If you think that you would like to DIY your divorce with a little help, online divorce might be a good option. An online divorce service will walk you through steps in your divorce, such as preparing the paperwork, drafting a settlement agreement, and (sometimes) filing the paperwork with the court. In some states, you might also have the option of working online with a divorce expert to guide you through the divorce process.
Some couples—especially those with busy schedules or who live far apart—choose to participate in divorce mediation online. You can participate in online mediation from anywhere that has an internet connection. Just like in-person mediation, the trained mediator will help you resolve the issues in your divorce such as property division, child custody, alimony, and child support.
And, if you're simply hoping to learn more about the divorce process, check out DivorceNet's library of free articles on topics ranging from divorce basics all the way to tax issues in a divorce. Nolo also offers a wide range of divorce and child custody books, forms, and services that can help both the DIY'er and people working with an attorney.