How To File Your Own Divorce
Step by Step Procedures
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:
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
of assets and other property
of Debt and monies owed to creditors
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.
A Financial Statement from both parties is completed
The Petition or Complaint is
completed along with the Consent, Appearance and Waiver form.
Child Custody Jurisdiction Form
Final Judgment or Decree
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.
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.
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.
A. PREPARING THE
MARITAL SETTLEMENT AGREEMENT
The Marital Settlement Agreement must contain
clauses that address the following items:
Division of Property
items (furniture, appliances)
(stocks, bonds, pension funds)
Alimony, custody and visitation, child support
1) 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:
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.
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.
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.
husband and wife do not own any real estate.
2) 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.
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
The wife will receive no vehicles
The husband and wife own no automobiles.
3) 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
husband will receive these household items:
Furniture in living room
Tools in Garage
The wife will receive these household items:
Furniture in master
Furniture and kitchen appliances
4) Clause for Division of Personal Property
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
accord with the spouses’ agreement, all personal property has been
divided to the satisfaction of the husband and wife.
attached list describes how the personal property was divided.
5) 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.
spouses agree to distribute the debts as follows:
Wife agrees to be
responsible for the following debt obligations:
Type of Debt:
Husband agrees to be
responsible for the following debt obligations:
Type of Debt:
6) 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
husband and wife agree to divide in half any monies in the
husband receives the checking account at Bank of America.
The wife receives the savings account at Well Fargo.
the husband nor the wife have a checking or savings account.
7) Clause for Division of Life
If either spouse has an insurance policy and both parties
agree that neither will be a beneficiary to the others' policy, use this
parties agree that neither will be retained as a beneficiary of the
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:
alimony is payable monthly;
payments will last a long time;
end on the paying spouse's death.
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
8) Clause for Division of
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.
husband and wife have agreed to be responsible for one half the the
income tax debt.
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.
income tax debt has been divided to the mutual agreement of the
husband and wife prior to the preparation of the marital settlement
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
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.
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
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:
alimony to either spouse: If
upon careful consideration you both decide that neither should receive
alimony, you must insert the following clause:
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."
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
“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
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
parties agree that__________ will pay the sum of $_______ on or
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.
10) 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.
have no minor children.
husband (or wife) will have sole custody and control of the minor
11) Clause for
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:
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
have no minor children.
12) Clause for Child
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
Three children - 20-35
Four children – 35-40
Five children – 40-45
Six children – 45-50
Seven + children – 50
Choose one of the
The non-custodial parent shall pay $_______ per week, in support
of the children payable directly to the custodial parent.
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.
We have no children.
13) Clause for Medical
Parents are responsible for
the children’s health care. Choose
one of the following clauses that best describes your position:
husband or wife shall provide medical insurance for the children
through the husband’s/wife’s employer.
have no children.
husband/wife will pay all non-covered medical expenses for the
children including optical, dental.
husband and wife will equally divide all non-covered medical, dental
and optical expenses for the children.
have no children.
14) Clause for Life
Insurance for the Children
husband or wife will purchase a life insurance policy benefiting the
children, either through the employer or private agent.
have no children.
15) Clause for Tax
You must decide which
spouse will claim the minor children as tax exemptions.
husband will claim the following children as income tax exemptions.
The wife will claim the following children as income tax
spouse will claim the children as tax exemptions for alternate
years, starting with the wife for the year 2000.
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.
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:
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
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.
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.
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.
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.
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.