How to Decide if Divorce Is Right for You and What Legal Options Exist

By BMA Law Research Team

Should I Get a Divorce?

Deciding whether to end a marriage is one of the most significant personal and legal choices you’ll make. Legally, divorce (or dissolution of marriage) is a court-ordered termination of marital rights and obligations, governed by state family codes, not federal law. Every state has its own residency requirements, waiting periods, and grounds for divorce (e.g., irreconcilable differences, adultery, abandonment, or no-fault provisions). Some states, like California and Texas, allow for a "no-fault" divorce where neither party needs to prove wrongdoing, while others may require separation periods (e.g., North Carolina’s one-year separation rule). Before filing, confirm your state’s specific requirements through your local court’s family law section or a qualified attorney, as procedural mistakes can delay or complicate the process. Arbitration or mediation may also play a role in your divorce, depending on your state and whether you or your spouse have signed a pre- or post-nuptial agreement containing arbitration clauses. Under the Federal Arbitration Act (FAA), private arbitration agreements are generally enforceable, meaning disputes over property division, alimony, or child custody could be resolved outside court, sometimes without a judge’s oversight. However, many states (e.g., New York, Florida) have exemptions for domestic relations matters, so arbitration clauses in divorce agreements may not cover child custody or support decisions. Always review any existing agreements with a lawyer to understand your options.

Key Takeaways

• State law governs divorce: Residency, waiting periods, and grounds vary, check your state’s family code or court website for specifics.
• No-fault vs. fault-based divorce: Most states allow no-fault divorces, but fault grounds (e.g., abuse, fraud) can affect alimony or property division in some cases.
• Arbitration clauses may limit court options: Pre- or post-nuptial agreements with arbitration terms could force disputes into private proceedings, even for custody or support.
• Consult a lawyer before filing: DIY divorces risk errors in paperwork, asset division, or legal deadlines that could cost you time or money.
• Mediation is often required or encouraged: Many courts mandate mediation for contested issues like child custody or asset division to avoid lengthy trials.

Why This Matters

Getting the divorce process wrong, whether by misfiling paperwork, ignoring arbitration clauses, or failing to protect your assets, can have lasting financial and emotional consequences. For example, if you overlook a pre-nuptial agreement’s arbitration clause, you might waive your right to a court judgment on spousal support or property division, leaving you at the mercy of an arbitrator’s decision. Similarly, failing to properly classify assets (e.g., retirement accounts, business interests) as marital vs. separate property can lead to unfair splits or tax liabilities. In states with community property laws (e.g., California, Arizona), missteps can result in losing half of assets you assumed were yours alone. The stakes are even higher when children are involved. Courts prioritize the child’s best interests, and errors in custody agreements, such as not following state guidelines on visitation schedules or failing to account for a parent’s financial ability to support the child, can lead to unfavorable rulings or costly modifications later. Additionally, if you’re considering arbitration for disputes, remember that arbitrators’ decisions are often final and not subject to appeal, meaning one misstep could lock in an unfavorable outcome. Taking the time to understand your state’s laws, your agreement’s terms, and your options for mediation or arbitration can save you thousands in legal fees, and years of stress.

How It Actually Works

Divorce is a legal process, not just an emotional decision. If you're considering it, understanding the steps, and the practical realities, can help you prepare. Here’s how it typically unfolds in most states, though rules vary by jurisdiction.

1. Determine if you meet residency requirements. Most states require at least one spouse to have lived there for a set period (often 6 months to a year) before filing. Check your state’s residency rules—filing too soon can delay the process or invalidate the divorce.
2. Decide between contested and uncontested divorce. An uncontested divorce (where both spouses agree on key issues like property, child custody, and support) moves faster and costs less. A contested divorce (disagreements on major terms) requires litigation, mediation, or arbitration. If you’re unsure, consult a lawyer or mediator early to explore options like AAA consumer arbitration to avoid court.
3. File the petition and serve your spouse. One spouse (the petitioner) files a divorce petition with the court, paying a fee (often $200–$400, though fee waivers may apply). The other spouse (the respondent) must then be formally served with the papers, either by a sheriff, process server, or certified mail (rules vary by state). If service fails, the divorce can stall.
4. Gather financial and asset documentation. Courts need proof of income, debts, property values, and retirement accounts to divide assets and determine support. Missing documents (like tax returns, bank statements, or mortgage records) can force delays or unfavorable rulings. Start organizing these financial disclosures immediately.
5. Negotiate or litigate key terms. Even in uncontested divorces, you’ll need to resolve:
   • Property division (community vs. separate property, per state laws)
   • Child custody and visitation (guided by the state’s "best interests" standard)
   • Child support (calculated via formulas like those in 42 U.S.C. § 667)
   • Spousal support (if applicable, per state-specific factors)
   If you can’t agree, mediation (required in many states) or arbitration may be mandatory before trial.
6. Finalize the divorce and obtain the decree. Once all terms are settled, the court issues a judgment of divorce (or decree). This legally ends the marriage and outlines obligations like support payments or custody schedules. Some states require a waiting period (e.g., 30, 90 days) before the decree is final. Do not remarry until you have the final decree in hand, some states invalidate new marriages if the divorce wasn’t fully processed.
7. Enforce the terms and adjust as needed. Life changes after divorce (job loss, relocation, or custody disputes). If your ex-spouse violates the decree (e.g., not paying support), you may need to file a motion to enforce or modify the order. Courts often require proof of a material change in circumstances (e.g., loss of income) to adjust support or custody.

Timelines vary widely: uncontested divorces can take 3, 6 months; contested cases may drag on for years. If you’re facing complex issues (hidden assets, high-conflict custody battles, or international property), consult a lawyer or mediator early to avoid costly surprises.

Common Mistakes

• Assuming divorce is always "50/50." Many states divide property equitably (not necessarily equally), considering factors like marital misconduct, separate property contributions, or one spouse’s career sacrifices. For example, in community property states (like California or Texas), assets earned during marriage

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  Frequently Asked Questions

  What are the legal grounds for divorce in my state?

  Grounds for divorce vary by state. Most states allow "no-fault" divorce, meaning you don’t need to prove wrongdoing, just that the marriage is irretrievably broken. Some states also recognize fault-based grounds like adultery, abandonment, or cruelty, but these can complicate proceedings. Check your state’s family code or consult a lawyer to confirm the specific requirements for your situation.

  Do I need a lawyer to get divorced?

  You’re not required to have a lawyer, but legal representation is strongly advised, especially in contested divorces involving complex assets, child custody, or spousal support. Many states offer self-help resources or mediation programs to simplify the process if both parties agree. If you’re unsure, a consultation with a family law attorney can clarify your rights and options without full representation.

  How long does divorce take, and what’s the process?

  Timelines depend on your state and whether the divorce is uncontested (both parties agree) or contested (disputes exist). Uncontested divorces can take 30, 90 days, while contested cases may drag on for months or years. The process typically involves filing a petition, serving your spouse, negotiating terms (or going to court), and finalizing a judgment. Mediation or collaborative law can often speed things up.

  How is property divided in a divorce?

  Most states follow "equitable distribution," meaning assets aren’t always split 50/50 but divided fairly based on factors like marriage length, income, and contributions. Community property states (e.g., California, Texas) split marital assets exactly in half. Prenuptial agreements, separate property, and debts also play a role. Consult your state’s laws or a lawyer to understand how your specific situation may be handled.

  Next Steps

  Start by gathering key documents like marriage certificates, financial records, and any prenuptial agreements. Research your state’s divorce laws or use online legal tools to assess whether mediation or self-representation might work for your case. If disputes arise or the process feels overwhelming, scheduling a consultation with a family law attorney can help you navigate the next steps clearly and protect your interests.