How to File a No Fault Divorce

A no-fault divorce is one that allows the parties to end their marriage without assigning blame for the breakdown of the marriage to either spouse. No-fault divorce laws are in effect in all 50 states, although the requirements vary between states.

Part 1

Part 1 of 2:

Initiating the Divorce

Historically, in order to get a divorce, people needed to have cause, or grounds, for a divorce to be granted. The legislatures enumerated the acceptable causes, like adultery, cruelty, abandonment, drunkenness, or criminality. In other words, someone was at fault for the destruction of the marriage. If it could not be argued that the divorce should be pursued on these grounds, the court would not grant it. A no-fault divorce is a divorce which is pursued on grounds like "irreconcilable differences," "irretrievable breakdown of the marriage," or something similar. A no-fault divorce is not the same thing as an uncontested divorce. In a no-fault divorce, the parties can still argue over alimony, child custody, division of property, and child support (in some states).
A divorce is a legal proceeding where the assistance of an attorney will almost certainly be helpful. While many individuals choose to represent themselves in a no-fault divorce case, you may wish to hire a divorce lawyer to advise you on any aspect of the divorce that you are unsure about. Some no-fault divorce lawyers charge a flat fee for a no-fault divorce, and it generally costs less than a fault-based divorce.
Many states have forms available for you to use to petition for divorce. This will make it easier. Just do a quick internet search for your state's form. If you don't find anything right away, look on the court system's website for you state. Also, most of the state Legal Aid organizations not only have forms or links to forms available, they often have detailed instructions for divorcing without an attorney specific to that state. Go here to find Legal Aid for your state: http://www.findlegalhelp.org
Begin with basic information. All divorce complaints will require you to list the name and address of you and your spouse, the date and place of the marriage, as well as listing any children from the marriage.^{[1]XResearch source}
5
Establish personal jurisdiction where you plan to pursue your divorce. A court must have jurisdiction, or the authority to decide a case, in order for you to bring a case before it. In the US, there are two types of jurisdiction that any court must have to hear any case: subject matter jurisdiction, and personal jurisdiction.^{[2]XResearch source}
- When a court has personal jurisdiction, it means that the court has the authority to hear a case involving that person. Usually, residency in a particular place is enough to establish personal jurisdiction.
- To establish jurisdiction, you will simply state in your divorce complaint that you meet the requirements for jurisdiction because you are a resident of that state. It is rare for personal jurisdiction to be an issue in a divorce case. However, sometimes a person must be a resident of a state for a period of time before they are eligible for a divorce. If you just barely meet the time requirement for living in state, have documentation of your residency (a lease, mortgage, etc.) available.
6
Establish subject matter jurisdiction. A court must also have the authority to hear a case covering a particular type of subject matter in order for you to bring your case before it. For example, you cannot bring a divorce case before a bankruptcy court, a juvenile court, or a drug court. To establish subject matter jurisdiction, indicate on your complaint that you are bringing your case before a court that has the authority to hear that type of case.^{[3]XResearch source}
- Some states have dedicated family courts that hear divorce cases, adoption cases, and the like. If your state has these, then you will almost certainly file for divorce with that court. In other states (and sometimes in rural areas), courts of general jurisdiction, like district courts, will hear your divorce case.
7
Determine the grounds for divorce. While a no-fault divorce does not require one spouse to claim that the other was responsible for the dissolution of the marriage, most states’ no-fault divorce laws require the parties the grounds upon which they seek a divorce. Essentially, the grounds for divorce are the reasons why the couple has decided not to continue their marriage.^{[4]XResearch source}
- Most states outline the grounds available for a no-fault divorce on a form that simply requires checking a box next to the ground that applies to your divorce case.^{[5]XResearch source}
- The wording may vary from state to state, but essentially all of the terms for the grounds of a no-fault divorce boil down to "irreconcilable differences." Another ground available for no-fault divorce in some states is mutual consent. In Massachusetts, for example, if both parties agree that the marriage is over, and cannot be fixed, a no-fault divorce will be granted.
- Because the law favors reconciliation and marriage, in some states, there are requirements for some grounds that the spouses live separately for a period of time before a no-fault divorce will be granted.
If you and your spouse have already agree to distribute assets and custody in a particular way. Indicate this on the complaint. If you have not been able to come to an agreement, indicate your ideal division of assets and custody arrangement, in order to strengthen you bargaining position later on.
The divorce process begins with one spouse filing a complaint (sometimes called a petition) for divorce with the state divorce court. Take your complaint to the county clerk of court and pay the filing fees.
Once this document is filed with the appropriate court, the spouse seeking divorce must serve the other spouse with “service of process,” which means giving the other spouse a copy of the complaint. You must have a disinterested third party do this, like a paid process server. For a guide to service of process, go to Serve Court Papers and learn about it in more detail.
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Part 2

Part 2 of 2:

Finalizing Your Divorce

1
Prepare for the answer or counterclaim. All lawsuits, including divorces, begin with a complaint. When the defendant, (sometimes known as the respondent) is served with the complaint, they are entitled to file an answer with the court, and additionally make their own claim for the plaintiff's (or petitioner's) wrongdoing.
- If the respondent files a counterclaim, that means that they are claiming that you are at fault for the divorce instead. Therefore, if you spouse files a counterclaim, regardless of the fact that your petition doesn't assign fault, the court is going to hear evidence of fault and make a determination as to its veracity (unless you settle before then).
- If you are served with a counterclaim, you need to hire an attorney. Your spouse is making an allegation of your wrongdoing before the court, and they will most likely bring some evidence to support their claim. You need to offer evidence to refute their claims, and few laymen know enough about the rules of evidence to prove their spouse wrong.
- Do not be surprised if a counterclaim is filed solely to gain leverage. By threatening a long and costly court battle to prove fault, your spouse strengthens their bargaining position with respect to contested issues.
- If your spouse does not allege fault in a counterclaim, but disagrees on terms for division of assets and child custody, you will know when they file their answer.
If your spouse unexpectedly files a counterclaim or files an answer with unexpected content, you can amend your petition if you so desire. You only need to make a motion that you wish to amend your complaint. That way, you will be able to assert fault if they assert fault, or change your preferred distribution of assets, custodial, or support arrangements.^{[6]XResearch source}^{[7]XResearch source} Find an example motion at http://www.findforms.com/single_form.php/form/146876/Order_on_Motion_to_Amend_Correct_District_Court_of_Delaware_District_Court_of_Delaware_Delaware
3
Come to an agreement on issues such as child custody and distribution of property. The other spouse may ask the court for a different distribution of assets or a different child custody agreement. Either you and your spouse, directly or through your lawyers, will come to a compromise or the court will decide for you--most likely in a way that satisfies no one.
- Consider a mediator. Mediators suggest solutions when two sides have reached an impasse in negotiations. Unlike arbitration, mediation is nonbinding, so if you simply loathe the mediator's suggestions, you are free to continue with litigation. However, mediators have a great success rate in coming to compromise solutions to seemingly intractable problems.^{[8]XResearch source} Find a mediator at https://www.mediation.org, or http://www.mediate.com
If you and your spouse cannot agree on the divorce settlement or on arrangements prior to the settlement, then, in many states, you may request a hearing before a judge or panel to decide temporary arrangements of custody and support.
5
Go to trial. Going to trial is the final step in a divorce proceeding. Most divorces won't require a trial to reach a settlement, and if a settlement is reached prior to trial the judge will authorize it and issue a final decree mimicking the terms of the settlement. If there is no settlement, then the Judge will craft the final decree on the basis of her or his determinations of fact and law--or, if you requested a jury, their determinations of fact and his determinations of law. When the judge hands down the decree, the divorce is over.
- Just as a layman should not perform even a simple surgery on themselves, no layman should represent themselves at trial, even one as straightforward as a divorce. If your divorce can only be resolved through trial, consult a lawyer as soon as possible. If you cannot afford one, go to http://www.findlegalhelp.org to find an attorney at no cost or reduced cost.
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For some divorce cases where both spouses agree on all aspects of the divorce, the process of filing a no-fault divorce can be rather quick. For others, the process can be lengthy if there are a number of issues upon which the spouses do not agree.
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