How to File for Divorce

Step by Step Procedures for How To File Your Own Divorce

This a general outline of procedures that are used in obtaining a no-fault divorce

The following are all necessary in order to complete your no-fault divorce:

  1. Both spouses agree to end the marriage and comply with the requirements for a no-fault divorce.
  2. A Marital Settlement Agreement is completed. A Marital Settlement Agreement is a written document that outlines the divorcing spouses rights and agreements regarding property, support and children. All forms are signed by both spouses and witnessed by a notary public. The issues that must be resolved by the spouses and outlined in the Marital Settlement Agreement include:
    • Division of assets and other property
    • Repayment of Debt and monies owed to creditors
    • Alimony, child support, custody
    In a no fault divorce, the judge will not decide any of these issues for you. These issues are solved voluntarily between the spouses.
  3. A Financial Statement from both parties is completed
  4. The Petition or Complaint is completed along with the Consent, Appearance and Waiver form.
  5. Child Custody Jurisdiction Form
  6. Final Judgment or Decree
  7. All legal documents must be signed in front of a notary public. The documents must then be filed with the County Clerk’s office. The Court will then arrange for a court date.
  8. Both parties comply with the Separation Agreement; for example, with respect to division of all property i.e. all titles and deeds are signed over to the appropriate party.
  9. The person who files the papers attends the court hearing. The judge may briefly question the person filing for divorce. The judge will then state his/her findings and advise you as to the final steps to be taken.

PREPARING THE MARITAL SETTLEMENT AGREEMENT

The Marital Settlement Agreement must contain clauses that address the following items:
  1. Division of Property
    • Real Estate
    • Vehicles
    • Household items (furniture, appliances)
    • Investments (stocks, bonds, pension funds)
    • Personal Bank Accounts
    • Insurance Policies
  2. Alimony, custody and visitation, child support
  3. Health insurance
  4. Life insurance
  5. Separation
  6. Debts
  7. Taxes

Division of Property

Clause for Division of Real Estate

This is one of the most contentious and controversial areas of a divorce settlement. It is imperative that both parties try to resolve these issues in an amicable and business like manner. The real estate Clause must state which spouse will own the property and live in it, pay the mortgage, taxes, insurance, utilities, repair expenses, division of profits from sale of the property if it is sold. The following is a sample of clauses that must be entered. Read and choose the one that would apply in your case:
  1. The title/deed for the home at 105 Windsor St., Belvedere, CA 94708, will be transferred to the husband/wife, who currently reside at the home and will be liable for the mortgage, insurance, taxes, utilities and expenses associated with the property.
  2. The home at 105 Windsor St., Belvedere, CA 94708 , is to be sold and all monies from the sale will be equally divided between the husband and wife provided that all outstanding taxes, insurance and other debts pertaining to the property are paid. Neither spouse will reside at the house. All taxes, utilities, insurance and expenses related to the property will be equally divided between the husband and wife.
  3. The husband/wife will continue to reside in the home at 105 Windsor St., Belvedere, CA 94708, and be liable to pay for the taxes, insurance and expense. The mortgage will be equally divided between husband and wife.
  4. The husband and wife do not own any real estate.

Clause for division of vehicles

In this clause, you must indicate who will keep which vehicles, who will pay the outstanding loans on them and what the arrangements for insurance will be.
  1. The husband will receive the title to the 1986 Honda free and clear of any claim by the wife. The husband will assume the outstanding loan on the car and holds the wife harmless from any and all claims arising from such debt.
  2. The wife will receive no vehicles
  3. The husband and wife own no automobiles.

Clause for Division of Household Items

In the usual scenario, all things that belong to the spouses before the marriage normally are returned to that person. Any remaining items should be distributed to the spouse by agreement contained in the marital settlement agreement. All these items should be in the possession of the receiving spouse before the divorce is filed. Otherwise, a list of the items should be included in the marital settlement agreement.
  1. The husband will receive these household items:
    • Furniture in living room
    • Tools in Garage
    • Stereo
  2. The wife will receive these household items:
    • Furniture in master bedroom
    • Garden tools
    • Furniture and kitchen appliances

Clause for Division of Personal Property

Each spouse may keep their own personal property such as jewelry, books, clothes. All these items should be in the possession of the spouse before the divorce is filed. Otherwise, a list of the items should be included in the marital settlement agreement.
  • In accord with the spouses’ agreement, all personal property has been divided to the satisfaction of the husband and wife.
  • The attached list describes how the personal property was divided.

Clause for Division of Debts

Any debts belonging to a spouse before the marriage are normally the responsibility of that spouse. However, debts can be divided between the spouses however they decide. Debts include, mortgage payments, car payments, credit card payments, leases and medical bills. A spouse can opt for splitting the debt payments or taking the responsibility for the entire amount.

The spouses agree to distribute the debts as follows:

Wife agrees to be responsible for the following debt obligations:

Type of Debt:         Owed to:         Amount:

Husband agrees to be responsible for the following debt obligations:

Type of Debt:         Owed to:         Amount:

Clause for Division of Bank Accounts

All monies belonging to the husband and wife before the marriage must be returned to them unless otherwise agreed. All other monies are considered community property and will be divided equally.

Savings or Checking accounts:

  1. The husband and wife agree to divide in half any monies in the savings/checking account.
  2. The husband receives the checking account at Bank of America. The wife receives the savings account at Well Fargo.
  3. Neither the husband nor the wife have a checking or savings account.

Clause for Division of Life Insurance

  1. If either spouse has an insurance policy and both parties agree that neither will be a beneficiary to the others' policy, use this clause:

    "Both parties agree that neither will be retained as a beneficiary of the others' policy."

  2. If both spouses decide that one should remain as a beneficiary on a life insurance policy of the other. The paying spouse will maintain the policy. If one of the supporting spouses die this measure will allow the dependent spouse to continue receiving benefits. This is highly recommended in the following situations:
    1. If alimony is payable monthly;
    2. The payments will last a long time;
    3. Payments end on the paying spouse's death.

    "The__(husband or wife)_____ is insured with__________at this time in the amount of $_________ and will maintain the policy until death. Both parties agree that ______(husband or wife)____ will remain sole and irrevocable beneficiary of this policy. The spouse who is responsible maintaining the insurance policy will provide the other spouse with proof of such coverage on an annual basis."

Clause for Division of Income Taxes

During the marriage, both spouses are responsible for all taxes even if the marriage lasted through only a portion of the tax year. Assuming that the spouses filed joint returns, any tax debts acquired during the marriage must be paid by both spouses. If one spouse fails to make payments, the IRS will continue to tax the both parties as if they were still married. If the spouses filed individual tax returns, then each party is responsible for their own return. If the divorce occurs before the end of the year, then the parties must file their returns individually. For example, if the divorce is finalized on November 3, 2000, the parties must file individual returns for the year 2000.
  1. The husband and wife have agreed to be responsible for one half the the income tax debt.
  2. The income tax debt to the IRS are to be paid as follows: the wife will pay $_____ and the husband will pay $_____ toward the income tax debt.
  3. The income tax debt has been divided to the mutual agreement of the husband and wife prior to the preparation of the marital settlement agreement.

Income Tax Liability for Property Transfers

Property transfers are considered gifts and are not subject to federal income tax so long as the transfer occurs within one year from the date the divorce was filed. No gain or loss will be recognized on the transfer of the property, regardless of who retained ownership of the property. However, the spouse who receives the property after the divorce and turns around and sells the property for a gain is liable for federal income taxes.

Income Tax Liability for Alimony

The spouse who is paying the alimony may deduct such payments from his or her taxes whether or not deductions are itemized on the federal tax form. Conversely, alimony payments to a spouse are treated as income on the receiving spouse' tax return.

Income Tax Liability for Child Support and Custody

Unlike alimony payments, child support is not considered income to the receiving spouse. Additionally, the paying spouse cannot deduct child support payments on his or her tax return. However, the IRS does allow an exemption for a dependent child if the parent has physical custody of the child for over 6 months of the year.

Clause for Alimony

The subject of alimony has been the source of much fear and confusion amongst people in the process of getting a divorce. The best way to allay these fears is to disregard all of your preconceived thoughts about alimony. Over the last few years, many of the laws with respect to alimony have been changed. Traditionally, men were the bread winners of the household and women were the homemakers and alimony was almost always received by the wife. Today most women work and are less dependent on their husbands for financial security. Therefore, alimony is not something which only the wife is entitled to. One of the major purposes of alimony is to give the spouse an opportunity to get back on their feet by training or educating themselves to become financially independent from their former spouse.
  • Both spouses have a legal right to receive alimony. However, alimony is not commonly awarded to either spouse. It is important to keep this in mind.
  • The misconduct of either spouse is no longer of importance when alimony awards are taken into account. What is of legal importance today is the economic situation of the spouse and not whether one of the spouses committed an imporper or immoral act. Only a few states allow a spouse's misconduct to play a role in alimony disputes.
  • A court is unlikely to award alimony in marriages that have lasted less than two years. If a marriage has lasted at least 10 years and one of the spouses is unlikely to be financially independent, a court will in the interests of justice, award alimony. Generally, if a spouse has been a homemaker and lacks essential employment skills or is of an age where his or her ability to work is difficult, the court will more likely award alimony. The Court will not force either spouse to decrease their standard of living as a result of divorce. If there are no children involved and both spouses are healthy and have the ability to be financially independent, the chances of receiving alimony are greatly reduced.
  • Federal law mandates that health insurance companies offer divorced spouses of employees who have coverage, the same group rates as the employee receives for up to three years after the divorce.
The following are three clauses that are to be written in the marital settlement agreement. You may choose the one that best relates to you:
  1. No alimony to either spouse: If upon careful consideration you both decide that neither should receive alimony, you must insert the following clause:

    "After carefully reviewing the circumstances and all of the terms of the marital settlement agreement, we both have decided that neither of us is entitled to receive alimony, maintenance, or spousal support from the other and we both have agreed to waive any present or future rights to receive alimony, maintenance or spousal support."

  2. Alimony to be paid monthly: If you both have decided the amount of the alimony and the time of month it should be paid and when it should end, you must insert the following clause:

    “The husband/wife will pay $xxxx per month as alimony starting ___________ (date), on the first day of each month. If husband/wife remarries, dies or cohabitates with a member of the opposite sex, payments will end. If neither of these conditions occur, alimony will terminate on ___________(date)

Alimony payable in a Lump-Sum Payment Clause If both spouses decide that alimony is to be paid in a one time lump sum, the following clause should be used. The benefit of this clause is that once the payment is made in a lump sum, the spouses can cut all future ties with respect to alimony:

"Both parties agree that__________ will pay the sum of $_______ on or before______.

Clause for Children (Custody, Support, Visitation, Insurance)

If the husband and wife bear or adopt any children during marriage, all issues concerning custody, child support, visitation rights, medical and life insurance and tax exemption should be discussed in the marital settlement. Please note that in a no-fault divorce you and your spouse must agree on all issues.

Clause for Custody

You must always keep the interests of the children at heart. The custodial spouse has the full responsibility for raising the children. If the spouses seek joint custody of the children, legal advice should be sought since matters become very complicated.
  1. We have no minor children.
  2. The husband (or wife) will have sole custody and control of the minor children.

Clause for Visitation

The non-custodial parent is allowed to have visitation so long as they are fit to be a parent under the eyes of the law. If the custodial parent denies visitation to the non-custodial parent, he/she will be in contempt of court. Choose one of the following clauses:
  1. The non-custodial parent has been granted visitation to the following terms: every other weekend, one day every other week, two weeks per summer and every other holiday. On or about the child’s birthday, the non-custodial parent will be allowed visitation.
  2. We have no minor children.

Clause for Child Support

Child support must take into account the revenues and debts of the husband and wife Depending on the County you file the divorce, child support is based on a certain percentage of after tax income of the paying spouse as follows:
  • One child - 15-20 percent of after tax income
  • Two children - 25-30 percent
  • Three children - 20-35 percent
  • Four children – 35-40 percent
  • Five children – 40-45 percent
  • Six children – 45-50 percent
  • Seven + children – 50 percent
Choose one of the following clauses:
  1. The non-custodial parent shall pay $_______ per week, in support of the children payable directly to the custodial parent.
  2. The non-custodial parent shall pay $_______ per week, through The County Child support Bureau. This payment shall include the administration fee of $_______ per week charged by the county.
  3. We have no children.

Clause for Medical Insurance

Parents are responsible for the children’s health care. Choose one of the following clauses that best describes your position:

Medical insurance:

  1. The husband or wife shall provide medical insurance for the children through the husband’s/wife’s employer.
  2. We have no children.
Non-covered medical expense:
  • The husband/wife will pay all non-covered medical expenses for the children including optical, dental.
  • The husband and wife will equally divide all non-covered medical, dental and optical expenses for the children.
  • We have no children.

    Clause for Life Insurance for the Children

    1. The husband or wife will purchase a life insurance policy benefiting the children, either through the employer or private agent.
    2. We have no children.

    Clause for Tax Exemptions

    You must decide which spouse will claim the minor children as tax exemptions.
    1. The husband will claim the following children as income tax exemptions. The wife will claim the following children as income tax exemptions.
    2. Both spouse will claim the children as tax exemptions for alternate years, starting with the wife for the year 2000.
    3. We have no children.
    Once you have completed the Marital Settlement Agreement, you need to have the original signed in front of two witnesses and a notary public. You now essentially have a binding legal contract between you and your spouse, which is enforceable in the Court. It is now time to perform on the promises you both made to each other. If you agreed to sell the house, you must now begin to do so. You must sign any papers necessary to transfer the properties you mentioned on the Marital Settlement Agreement.

    PREPARING YOUR DIVORCE PAPERS

    Once the Marital Settlement Agreement is prepared and each individual's financial statement is ready, you are ready to prepare the divorce documents. In addition to the Marital Settlement Agreement and Financial Statements, the following legal documents must be submitted to the Court:
    1. The Petition or Complaint
      This will be the main document to be filed with the Court. It formally asks the court to officially terminate the marriage. Most states refer to this document as Petition or Complaint. Some states refer to it as an action, application, bill of complaint or declaration. For Petitions, the names of the parties are petitioner and respondent. For complaints, the names of the parties are plaintiff and defendant. This will request that the court use the marital settlement agreement for obtaining the terms of your divorce. You must now decide which of you will be petitioner/plaintiff and which the respondent/defendant. Legally, it does not make a difference which party is which.
    2. Appearance, Consent, and Waiver
      If a state allows a petition for divorce or dissolution of marriage to be filed jointly, this form will not need to be filed. This form is a confirmation by the respondent/defendant spouse that he/she joins the petitioner/plaintiff in filing for the divorce. All of the divorce papers must be handed to the other party. This is called service of process. One of the functions of this form is to eliminate the necessity that the divorce papers be formally served on one of you. The petitioner/plaintiff makes an appearance in court and consents to the jurisdiction and venue of the court and in essence gives the court the authority to grant your divorce. The respondent/defendant offers their consent to the adoption of the marital settlement agreement in the order granting the divorce. More importantly, the respondent/defendant waives their right to dispute facts stated in the MSA, motion for new trial, records of facts stated in prior testimony, notice of entry of final judgment or decree, and right to appeal.
    3. Child Custody Jurisdiction Form
      If there are minor children born or adopted during the marriage, this form should be used. The form provides the court with information with respect to minor children, and it mandatory under the Uniform Child Custody Jurisdiction Act in all states. Additionally, this form confirms with the court that it is the only court that has jurisdiction over matters pertaining to the minor children.
    4. Final Judgment or Decree
      This is the document that officially declares your marriage over. This is a final court order. In some states it is called Judgment of Divorce, Judgment of Dissolution of Marriage, Decree of Divorce or Decree of Dissolution of Marriage. This document should state what you and your spouse agreed to in the Marital Settlement Agreement. Depending on which state you live in, you must change the legal terminology to reflect that states local rules. As an example, divorce may be substituted for dissolution of marriage. Some judges require that the entire terms of the Marital Settlement Agreement be included in the Judgment or Decree form. The judge at the end of the divorce hearing usually signs this document. Before entering the order or final judgment, the judge may change certain items that were previously agreed by the spouses. For instance, the judge may increase or decrease the amount of child support payments. If this is the case, the judge will inform you orally and you must then retype the judgment/decree to accurately reflect his opinion.
    5. Certificate of Divorce or Dissolution of Marriage
      This certificate is not required to be filed in all states. Just like a birth certificate, this document must be filed with the appropriate state agency usually the Bureau of Vital Statistics. The clerk of the court where you will file your divorce will have these forms. Every state has its own form, therefore make sure you use the form appropriate for your state and take that form to the hearing.

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