There are three legal ways to get out of a marriage: divorce, which ends a valid marriage; annulment, which declares the marriage was never valid to begin with; and legal separation, which lets you live apart under a court order without formally ending the marriage. Which one fits depends on how the marriage began, why it’s ending, and what you need to protect on the other side, including health insurance, Social Security credits, custody, and property.
Most people who want out will file for divorce, because annulment is available only in narrow circumstances and legal separation leaves the marriage technically intact. The rest of this guide walks through how to choose, what to do before you file, and what the process looks like once you start.
If You’re Leaving an Unsafe Marriage, Start Here
If domestic violence is part of the picture, your safety comes before any paperwork. You can request a protective order (sometimes called a restraining order) through your local court, and in most jurisdictions you can do this before or at the same time you file for divorce. A protective order can require your spouse to leave the shared home, stay away from you and your children, and stop all contact. Courts handle these requests on an expedited basis, sometimes the same day.
The National Domestic Violence Hotline (1-800-799-7233, or text START to 88788) provides confidential support around the clock, including safety planning, local shelter referrals, and connections to legal aid. Their website at thehotline.org also offers a live chat option. If you’re in immediate danger, call 911.
Divorce, Annulment, or Legal Separation
A divorce permanently dissolves a valid marriage. Every state now allows no-fault divorce, meaning you can file based on irreconcilable differences or an irretrievable breakdown of the relationship without proving your spouse did anything wrong. Some states still allow fault-based grounds like adultery, abandonment, or cruelty, which can sometimes affect how a judge divides property or awards support.
An annulment is different in kind, not just in degree. It declares that the marriage was never legally valid in the first place. Courts grant annulments only under narrow circumstances: one spouse was already married, one spouse lacked the mental capacity to consent, one party was underage without proper consent, or the marriage was based on fraud going to the heart of the relationship. That last category means deception about something fundamental, like the ability to have children, not ordinary dishonesty. Because annulments are hard to get, most people who want out of a marriage will pursue divorce instead.
A legal separation lets you live apart under a court order that addresses custody, support, and property without ending the marriage. Couples choose this path for specific practical reasons: keeping a spouse on employer health insurance, preserving Social Security benefits that require ten years of marriage, or honoring religious beliefs that discourage divorce. A legal separation agreement can later convert into a divorce in most jurisdictions.
What to Do Before You File
Check Residency and Waiting Periods
Before you can file for divorce, you need to meet your state’s residency requirement. This means living in the state for a continuous period, ranging from as little as six weeks to a full year. If you recently moved, you may need to wait before filing, or you might be able to file in the state where your spouse still lives.
Many states also impose a waiting period between filing and finalization. Around 35 states require some form of cooling-off period, from as brief as 20 days at the short end to past six months at the long end. About 15 states impose no mandatory waiting period at all. A handful of states also require spouses to live separately for a set period before a no-fault divorce can be granted, which adds to the timeline. Even if you and your spouse agree on everything, a mandatory waiting period means the divorce cannot be finalized before that clock runs out.
Gather Your Documents
Getting organized before you file saves time, reduces legal fees, and prevents surprises during discovery. Start collecting these records as early as possible, especially if you’re concerned your spouse might restrict your access later.
- Marriage certificate, birth certificates for any children, and Social Security numbers for all family members.
- Pay stubs, tax returns for the past three to five years, and documentation of any other income sources like rental properties or freelance work.
- Bank statements, investment and brokerage account statements, retirement account statements (401(k), IRA, pension), and credit card statements.
- Mortgage statements, car loan documents, student loan balances, and any other outstanding obligations. Note which debts are joint and which are in one spouse’s name only.
- Real estate deeds, vehicle titles, appraisals of valuable items, and business ownership documents if either spouse owns a business.
- Cryptocurrency held on exchanges or in private wallets, NFTs, and any other blockchain-based holdings. These are easy to overlook and easy to hide, so document wallet addresses and exchange account information if you can access it.
- A driver’s license, voter registration, utility bills, or lease agreements showing how long you’ve lived in the state.
Make copies of everything and store them somewhere your spouse cannot access, such as a safe deposit box, a trusted friend’s home, or a secure cloud account.
How the Divorce Case Moves
The process starts when one spouse (the petitioner) files a petition with the local court. This document identifies the grounds for divorce and may include initial requests about custody, support, or property. After filing, you must formally serve the other spouse (the respondent) with the paperwork. Personal delivery by a process server or sheriff is the most common method, though some courts allow service by mail or publication.
The respondent then has a window to file a response, typically 20 to 30 days. If no response comes, the court can issue a default judgment based on the petitioner’s requests alone. Once both sides have filed, a discovery phase lets each party request financial documents, account statements, and other relevant information from the other, through written questions, document requests, or depositions.
Uncontested Versus Contested
If you and your spouse agree on all major issues, you have an uncontested divorce. It’s faster, cheaper, and far less stressful. You submit a written settlement agreement, a judge reviews it for basic fairness, and the divorce is granted. Some people handle an uncontested divorce without an attorney, though having one review the agreement before you sign protects you from overlooking something expensive later.
A contested divorce means you disagree on at least one significant issue. The court may order mediation first, where a neutral third party helps you negotiate. If mediation fails, the case goes to hearings or trial, where a judge decides the unresolved matters. An uncontested divorce with basic legal help runs around $2,000, while a contested case involving custody disputes or complex assets can reach $50,000 or more.
Temporary Orders
Divorce can take months to finalize, and life doesn’t pause. Either spouse can ask the court for temporary orders that stay in effect until the final decree. These can set temporary custody and visitation, interim child or spousal support, who stays in the family home, and restrictions on selling or hiding assets. If you need financial support or custody arrangements right away, filing for temporary orders early is critical.
What Gets Decided in the Divorce
Property and Debt
How your property gets divided depends on your state’s system. Forty-one states plus the District of Columbia use equitable distribution, where a judge divides marital property in a way that’s fair based on the circumstances. Fair doesn’t necessarily mean equal. A judge might award a 60/40 or even 70/30 split based on each spouse’s income, earning potential, contributions to the marriage, and the length of the marriage.
Nine states follow community property rules, where the starting presumption is that everything acquired during the marriage belongs to both spouses equally and gets split 50/50. Even there, the actual division isn’t always perfectly even. Property you owned before the marriage, gifts, and inheritances are usually separate property and stay with the original owner, though this can get complicated if separate property was mixed with marital assets.
Joint debt is the trap most people miss. A divorce decree can assign responsibility for a joint credit card or loan to one spouse, but your creditors don’t care what the decree says. The original contract still controls. If your ex is ordered to pay a joint balance and stops making payments, the credit card company can come after you for the full amount, and your credit score takes the hit regardless of what the judge ordered. The practical fix is to pay off or close joint accounts before the divorce is finalized whenever possible, and to refinance joint mortgages and car loans into one spouse’s name alone. If that’s not feasible, your settlement agreement should include clear consequences for failure to pay assigned debts.
Child Custody and Support
Courts decide custody based on the child’s best interests. Two separate types of custody are at play. Legal custody is the authority to make major decisions about the child’s life, including education, healthcare, and religious upbringing. Physical custody determines where the child lives day to day. Either type can be sole (one parent has primary authority) or joint (both parents share it). Joint legal custody with primary physical custody to one parent is one of the most common arrangements.
Child support ensures both parents contribute financially, regardless of custody arrangement. The calculation factors in each parent’s income, the number of children, how much time the child spends with each parent, childcare costs, and health insurance expenses. Courts use formulas set by state guidelines, so the amount isn’t left to a judge’s discretion the way property division sometimes is. Child support orders can be modified later if circumstances change significantly.
Spousal Support
Spousal support (also called alimony or maintenance) may be awarded to help a lower-earning spouse transition to financial independence. Judges weigh the length of the marriage, each spouse’s income and earning capacity, age, health, and the standard of living during the marriage. A short marriage with two working professionals rarely produces a large support award. A long marriage where one spouse left the workforce to raise children is where substantial, longer-term support becomes more likely. Spousal support is not automatic, and courts in most states treat it as temporary when possible.
What Changes After the Decree
Taxes
Your filing status for the entire tax year depends on whether you’re married or divorced on December 31. If your divorce is final by the last day of the year, the IRS treats you as unmarried for that entire year, even if you were married for most of it.1Internal Revenue Service. Publication 504 Divorced or Separated Individuals If you’re still legally married on December 31, you file as married (jointly or separately), even if you’ve been living apart all year.
Once divorced, you file as single unless you qualify for head of household status, which requires that you paid more than half the cost of maintaining a home for a qualifying dependent.2Internal Revenue Service. Filing Status Head of household gives you a larger standard deduction and better tax brackets, so it’s worth checking whether you qualify.
Alimony payments under any divorce agreement executed after December 31, 2018, are not deductible by the payer and not taxable income for the recipient. Congress repealed the alimony deduction as part of the Tax Cuts and Jobs Act, and that change remains in effect.3Office of the Law Revision Counsel. 26 USC 215 Alimony Etc Payments – Repealed This matters for negotiation: because the payer gets no tax break, the after-tax cost of alimony is higher than it was under the old rules.
Health Insurance
If you’re covered under your spouse’s employer-sponsored health plan, divorce is a qualifying event under federal COBRA law that entitles you to continue that coverage for up to 36 months.4Office of the Law Revision Counsel. 29 USC 1162 Continuation Coverage The catch is cost. Under COBRA, you pay the full premium (both the employee and employer portions) plus a 2% administrative fee, which often means monthly premiums two to three times what you were paying as a covered spouse.
Divorce also qualifies you for a special enrollment period on the Health Insurance Marketplace, giving you 60 days to sign up for a new plan outside of open enrollment. Depending on your post-divorce income, you may qualify for premium subsidies that make a Marketplace plan significantly cheaper than COBRA. Compare both before defaulting to COBRA coverage.
Retirement Accounts
Retirement accounts are marital property to the extent they were funded during the marriage, and dividing them requires a specific legal document called a Qualified Domestic Relations Order (QDRO). A QDRO directs the plan administrator to pay a portion of one spouse’s retirement benefits to the other spouse.5Internal Revenue Service. Retirement Topics – QDRO Qualified Domestic Relations Order Without a QDRO, the plan has no legal obligation to split the account, regardless of what your divorce decree says.
A properly drafted QDRO also lets the receiving spouse roll the funds into their own retirement account without triggering early withdrawal penalties or immediate taxes. Getting the QDRO wrong, or forgetting to file one altogether, is one of the most expensive mistakes in divorce. If retirement accounts are a significant marital asset, an attorney or QDRO specialist should prepare the order.
Restoring Your Former Name
If you changed your name when you married and want to change it back, the simplest time is during the divorce itself. Most courts will include a name restoration provision in the final decree if you request it, which is far easier than filing a separate name change petition later.
Once you have a decree that includes your restored name, update your records with various agencies. The Social Security Administration requires the divorce decree showing your new name, or your original birth certificate if the decree doesn’t specify it, along with proof of identity.6Social Security Administration. Evidence Required to Process a Name Change on the SSN Based on Divorce, Dissolution, or Annulment After updating your Social Security card, work through your driver’s license, bank accounts, passport, and other records. The Social Security update should come first because other agencies often require the new card as proof.
Getting Help If You Can’t Afford a Lawyer
Filing fees to start a divorce case range from roughly $250 to $400 depending on where you live, and most courts offer fee waivers for people who can demonstrate financial hardship. If you can’t afford an attorney, legal aid organizations in every state provide free or low-cost help with family law cases. The Legal Services Corporation (lsc.gov) maintains a directory of local legal aid offices. Many state bar associations also run lawyer referral services with reduced-fee consultations. For an uncontested divorce with no children or significant assets, court self-help centers and online document preparation services can help you file on your own for a few hundred dollars total.