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How Do I Start a Divorce? The Real Answer (Not the Internet Fantasy Version)
“How do I start a divorce?” I get asked this question all the time. And usually the person asking has already spent an hour online and is more confused than when they started. That’s not their fault. The internet is full of bad information, half-truths, and outright scams when it comes to divorce.
If you’ve seen ads promising a “$295 divorce,” “no lawyer needed,” or my personal favorite, “no signature required,” let me save you some grief right now. That’s a scam. Full stop. Those companies don’t actually get you divorced. They sell you paperwork, and when it doesn’t work—or when something goes wrong—you end up paying real money to fix the damage. I see it all the time.
Now, there are situations where a simple, uncontested divorce makes sense. If you have no children, no real property, very little debt, and you haven’t been married very long, an uncontested divorce can absolutely be the right path. In those limited situations, you may not even need a lawyer, and I tell people that. I’m not interested in charging someone legal fees they don’t need to spend.
NO Fault and Unconstested: Not the Same.
But here’s where people get tripped up. “Uncontested” does not mean you file papers and magically everything works itself out. And “no-fault divorce” does not mean no problems, no work, or no conflict.
No-fault divorce simply means this: you no longer have to prove wrongdoing to get divorced in New York. Years ago, you had to prove adultery, extreme cruelty, imprisonment, or even convince a panel of doctors that your spouse was clinically insane. We got rid of all that, and that part is good. You can now get divorced without putting on a show for the court.
But that’s only the beginning, not the end.
How to Start a Divorce: Figuring Out The Real Issues
Once the divorce starts, you still have to deal with dividing property, figuring out custody and parenting time, addressing support, and yes, dealing with debt. I’ve had divorces completely fall apart over credit cards. Not houses. Not pensions. Credit cards. No-fault doesn’t make any of that disappear.
And this is the part people really don’t like hearing: an uncontested divorce only works if everyone actually agrees on everything. Agreement doesn’t mean “be reasonable and do it my way.” Agreement means both sides give something up and land in the same place. If you’re fighting over the house, the kids, the pension, or even who’s responsible for the debt, then you don’t have an uncontested divorce—no matter how badly you want one.
Mediation v. Litigation?
When considering how to start the divorce, the first question is whether to mediate or not. If you can agree on most everything, that’s where mediation versus lawyers comes in. If you can sit down with your spouse and have a real conversation, if you can sketch out a basic framework of a deal, mediation can be a great option. I’m a big fan of mediation when it fits the situation. But mediation only works if both people are being honest, transparent, and willing to compromise.
If you can’t talk to your spouse at all, if every conversation turns into a fight, or if one side is trying to “win” instead of resolve things, then you’re going to need lawyers. That doesn’t mean scorched earth. It means having someone who understands the law and can advocate for you within it.
Be Realistic in Your Goals
Divorce is the art of the possible. That’s where the phrase “within the context of the law“, really matters Divorce isn’t about what you want. It’s about what you can realistically get.
You don’t automatically get the house just because you want to keep it. If the house was bought during the marriage, it’s marital property. But that doesn’t mean there aren’t strategic solutions. In police and firefighter divorces, for example, we often trade pensions for houses so one spouse keeps the pension and the other keeps the home. That’s not luck. That’s planning.
So if you’re asking how to start a divorce, here’s the real first step. Before filing anything, ask yourself whether you can have an honest conversation with your spouse. If you can, try. Figure out what you want. Figure out what they want. See if there’s any overlap. If you can find common ground, you may save yourself a lot of money and stress.
And if you can’t, that’s okay too. That’s when you talk to an attorney early, before things spiral out of control.
Should You Start A Divorce by Filing Papers?
If there is a chance we can work this out, I like to send a letter to your spouse. Basically, I write, “I’ve been hired to start a divorce, we’d like to do this amicably. Please have your lawyer contact.”
This is a simple, low confrontational way to start it. Most divorces end in settlement, so I figure why not start by not being agressive.
If the spouse ignores me, or we there is no possibility of starting this with a letter. We file the divorce and have a process server deliver the papers. This ups the temperature. People don’t like when my big, burly process server Sam serves the papers. He wears a body camera and records everything.
If things are already off the rails, we start with an emergency motion. That raises the stakes and gets us before a judge really fast. There are some lawyers who routinely use this path because it vastly increases legal fees. I only use it if it is the only want to protect my client. Because, again, it increases the legal fees.
Take a Breath, Chose the Right Course of Action
Look, I’ll be honest. I’d love to take your money. But if you don’t need to spend it on lawyers, you shouldn’t. You should spend that money on yourself and your kids, not on litigation you could have avoided. Try to work it out first. If you can’t, get help from someone who knows what they’re doing.
In part two, I’ll walk through what actually happens once papers get filed and what the process really looks like.
If you have questions or you’re trying to figure out your next step, call Port & Sava at (516) 352-2999. We’ll help you get through the process and get on with the rest of your life.
