Checklist · Family Law

Filing for and Responding to a Divorce: A Practical Checklist

28 U.S.C. § 1332

Type: Checklist
Jurisdiction: National
Date: 2023-11-26
Topic: Family Law

This checklist carries a divorce from the decision to file through the post-decree tasks nobody remembers, in ten phases. Phase 1 is preparation before anything is filed, including the document set that is easiest to obtain now and hardest later, and the four acts that violate automatic orders. Phase 2 covers filing, service, and the three separate jurisdictional questions that do not always point to the same court. Phase 3 covers automatic and temporary orders, including the interim fee request that is the most under-made motion in family law. Phase 4 is disclosure and the joint-return tax exposure that survives the decree, and Phase 5 is the asset and debt inventory with characterization and tracing. Phase 6 covers support, guidelines, imputation, and the support-versus-property characterization that controls modifiability and bankruptcy treatment. Phase 7 covers the parenting plan and the terms it must contain to be operable by two people who are not speaking. Phase 8 covers settlement, and Phase 9 covers the decree and the post-decree tasks including the QDRO that must be drafted, entered, and accepted. Phase 10 covers modification and enforcement, and four model provisions and a ranked failure-mode list are included.

Filing for and Responding to a Divorce: A Practical Checklist

Family Law > Divorce | Published 26 November 2023 - Updated 18 July 2025 | UpLaw - uplaw.us

The post-decree phase is the one nobody plans for and the one where the most valuable asset in the case is routinely lost. Phase 9 exists for the QDRO.

Keywords: disclosure, characterization, tracing, temporary orders, guidelines, parenting plan, QDRO, modification

How to use this checklist

Ten phases. Each has - [ ] items and a Why it matters, and the traps note. A fictional case — a nineteen-year marriage, two children, a house, a 401(k), a pension, and $46,000 of joint debt — runs throughout.

Doctrine is in Divorce and Dissolution: A Comprehensive Guide to Grounds, Property, Support, and Parenting. The narrative is Dividing a Life: How Divorce Courts Actually Split Property, Income, and Time. The materials are in The Divorce and Family Dissolution Toolkit.

Phase 1 — Before anything is filed

[ ] Confirm the residency requirement for your state and whether you meet it — Sosna v. Iowa, 419 U.S. 393 (1975).
[ ] Collect 3–5 years of tax returns with all schedules.
[ ] Collect pay records for both parties if accessible.
[ ] Collect statements for every account: checking, savings, brokerage, retirement, and any pension summary.
[ ] Collect the mortgage statement, any equity line, and a value estimate for real property.
[ ] Collect vehicle titles and loan statements.
[ ] Collect every credit card and loan statement.
[ ] Collect life insurance policies showing cash value.
[ ] Collect business records if either party has an ownership interest.
[ ] Locate any premarital or postnuptial agreement.
[ ] Write the one-page summary: dates, children, incomes, every asset and debt with a value and whose name is on it.
[ ] If you cannot afford the filing fee, request a waiver — Boddie v. Connecticut, 401 U.S. 371 (1971).
[ ] Do not empty a joint account, remove children from the state, change beneficiaries, or cancel insurance.

Why it matters, and the traps. Access to documents is easiest before a case exists and hardest afterward. Whatever you can obtain now, obtain now.

Federal courts will not hear this — Ankenbrandt v. Richards, 504 U.S. 689 (1992) and 28 U.S.C. § 1332. It is a state-court case.

The four prohibited acts above violate automatic orders in many states the moment a case is filed, and doing them beforehand looks worse, not better.

Phase 2 — Filing, service, and jurisdiction

[ ] Determine jurisdiction over the marriage (your residency).
[ ] Determine personal jurisdiction over the respondent for property and support.
[ ] Determine the children's home state — 28 U.S.C. § 1738A.
[ ] Prepare the petition and any required parenting or financial forms.
[ ] Arrange service exactly as the rules require, and file proof.
[ ] Calendar the response deadline — yours or theirs.
[ ] If responding, file an answer on time; a default divorce can grant everything requested.
[ ] Raise any jurisdictional objection in the first response or risk waiving it.
[ ] Consider whether legal separation or annulment better fits the situation.

Why it matters, and the traps. Three jurisdictional questions, which do not always point to the same court. A court can dissolve a marriage and lack power to divide out-of-state property or bind a nonresident to support — the "divisible divorce" problem, which is routine and routinely missed.

A default divorce is a real risk. Respondents who ignore a petition because they "don't want the divorce" cannot stop it and can lose everything else.

Phase 3 — Automatic and temporary orders

[ ] Read the automatic orders that attach on filing, and comply.
[ ] Request temporary orders for: exclusive possession · parenting schedule · child support · spousal support · debt service · preservation of insurance and assets.
[ ] Request interim attorney fees from marital funds if you lack access to income.
[ ] Do not agree to a lopsided temporary parenting schedule.
[ ] Preserve health insurance coverage and confirm the effect of any separation on it.
[ ] Address safety first if it is present — see Obtaining or Responding to a Protective Order: A Practical Checklist.

Why it matters, and the traps. The temporary schedule becomes the status quo, and courts are reluctant to disturb an arrangement that is working. A schedule agreed to for peace in month two frequently decides month fourteen.

The interim fee request is the single most under-made motion in family law. Where one spouse controls the income, an early fee award levels the process; one granted six months in does not undo six months of underrepresentation.

Phase 4 — Disclosure

[ ] Complete the financial affidavit accurately and completely.
[ ] Understand the duty is affirmative and continuing — supplement when things change.
[ ] Serve and respond to discovery under the analogue of Federal Rule of Civil Procedure 26.
[ ] Subpoena third-party records — employers, banks, plan administrators — where needed.
[ ] Consider an examination under the analogue of Federal Rule of Civil Procedure 35 only if capacity or health is genuinely at issue.
[ ] Assess joint return exposure and the deadlines under 26 U.S.C. § 6015.
[ ] Disclose everything.

Why it matters, and the traps. Concealment is the one unforced error. A hidden asset supports reopening the judgment, an unequal division as a sanction, fee-shifting, and contempt — and it destroys credibility on every other issue simultaneously.

A decree cannot bind the taxing authority. Innocent spouse relief runs on its own clock; address it before the case closes, not after a notice arrives — see Responding to an IRS Notice, Audit, or Collection Action: A Practical Checklist.

Phase 5 — The asset and debt inventory

[ ] List every asset with: description, account number, value, valuation date, title, and characterization.
[ ] List every debt with: creditor, balance, whose name, and characterization.
[ ] Identify separate property: premarital, inherited, gifted, post-separation, or designated by agreement.
[ ] Trace separate property while the records still exist.
[ ] Determine your state's rule on passive versus active appreciation of separate property.
[ ] Identify any commingling or transmutation issue.
[ ] Identify dissipation — gambling, an affair, transfers to relatives, deliberate business damage.
[ ] Flag assets with no monthly statement: pensions, options, restricted stock, cryptocurrency, business interests.
[ ] Decide where a valuation expert is proportionate — pension, business, contested real property.
[ ] Adjust for pre-tax versus post-tax character before calling any split equal.

Why it matters, and the traps. Characterization decides more outcomes than valuation. The party claiming separate character bears the tracing burden, and tracing requires documents that get thrown away.

The pension is the asset people forget because it does not arrive on a statement.

$100,000 in a traditional retirement account is not $100,000 in savings. 26 U.S.C. § 1041 makes the transfer non-taxable; it does not make the assets equivalent.

The rule of proportion. An appraiser who costs $4,000 to resolve a $9,000 dispute has not helped.

Phase 6 — Support

[ ] Run the child support guideline with accurate inputs.
[ ] Determine income for a self-employed or variable earner from bank statements and the ledger, not the return alone.
[ ] Consider imputation where a party is voluntarily unemployed or underemployed.
[ ] Confirm how parenting time affects the calculation in your state.
[ ] Allocate childcare, health insurance, and extraordinary expenses expressly.
[ ] Identify any basis for deviation, which requires findings.
[ ] For spousal support: assess duration, earning capacity, contributions to the other's capacity, and any duration guideline.
[ ] Decide whether an obligation is characterized as support or property — it controls modifiability and bankruptcy treatment under 11 U.S.C. § 523.
[ ] Note the post-2018 change to 26 U.S.C. § 71 deductibility.
[ ] Provide life insurance securing support, with a verification mechanism.

Why it matters, and the traps. Guideline support is arithmetic once income is fixed, so the input is the entire case.

The support-versus-property characterization has consequences years later in modification and in bankruptcy. Drafting it carelessly is a recognizable malpractice pattern.

Phase 7 — The parenting plan

[ ] Legal decision-making: education, medical, religious — joint or sole, and how deadlocks break.
[ ] The regular schedule, written week by week.
[ ] Holidays and school breaks, with a rotation.
[ ] Summer.
[ ] Transportation and exchange location.
[ ] Communication protocol between parents, and with the children.
[ ] Travel, passports, and out-of-state notice.
[ ] Relocation notice requirements.
[ ] A dispute resolution step before returning to court.
[ ] Right of first refusal for childcare, if wanted.

Why it matters, and the traps. The plan must be operable by two people who are not speaking. Vagueness is not flexibility; it is a future motion.

Troxel v. Granville, 530 U.S. 57 (2000) means fit parents are presumed to act in their children's best interests — which is why agreed plans receive deference and litigated ones receive scrutiny.

The factor that surprises litigants: each parent's willingness to support the child's relationship with the other. A dossier on the other parent is read as evidence about its author.

Phase 8 — Settlement

[ ] Choose the process: negotiation · mediation · collaborative · arbitration · litigation.
[ ] Screen for safety first — mediation is inappropriate or requires structural modification where there is abuse.
[ ] Prepare the way you would for any mediation — see Preparing for and Attending a Mediation: A Practical Checklist.
[ ] Note settlement communications are generally protected under the analogue of Federal Rule of Evidence 408.
[ ] Resolve uncontested items in writing early to scope the dispute.
[ ] Consider a single joint expert for any valuation.
[ ] Confirm whether the agreement merges into the decree or survives as a contract.

Why it matters, and the traps. Roughly ninety-five percent of these cases settle. The question is not whether but how, and the cost is driven by the number of separately litigated issues rather than the size of the estate.

Phase 9 — Decree and post-decree tasks

[ ] Review the decree against the agreement, line by line.
[ ] Draft the QDRO — 29 U.S.C. § 1056, 26 U.S.C. § 414.
[ ] Have the court enter it.
[ ] Confirm the plan administrator accepts it.
[ ] Address survivor benefits expressly.
[ ] Prepare separate orders for government, military, or non-qualified plans, which follow their own forms.
[ ] Refinance or close every joint debt; a decree does not bind a creditor.
[ ] Retitle real property and vehicles.
[ ] Change beneficiaries on life insurance, retirement, and payable-on-death accounts.
[ ] Update the will, powers of attorney, and health care directive — see Executing a Durable Power of Attorney and Advance Directive: A Practical Checklist.
[ ] Establish income withholding for support.
[ ] Confirm health insurance transitions.
[ ] Diary the first review date for support.

Why it matters, and the traps. The unentered QDRO is the most consequential omission in this field. Decree says the account will be split; nobody drafts the order; years later the participant retires, dies, or rolls the money over, and the former spouse holds a judgment against a person rather than an interest in a plan.

A creditor is not bound by the decree. An order that the other party pay a joint card does not stop the issuer from pursuing you.

Phase 10 — Modification and enforcement

[ ] Understand that property division is final absent fraud, concealment, or mistake.
[ ] For support: identify a substantial change in circumstances.
[ ] File the motion first — modification is generally effective from the filing date, not the date the circumstance changed.
[ ] Expect imputation if the income reduction was voluntary.
[ ] For parenting: change in circumstances plus a best-interests showing, with a possible post-decree waiting period.
[ ] For enforcement of support: withholding, license suspension, intercept, liens, contempt — and note 15 U.S.C. § 1673 permits a higher garnishment percentage for support.
[ ] In any contempt proceeding, insist on an express ability-to-pay finding — Turner v. Rogers, 564 U.S. 431 (2011).
[ ] Across state lines: 28 U.S.C. § 1738B for support, 28 U.S.C. § 1738A for custody.
[ ] The support enforcement machinery runs through 42 U.S.C. § 651, 42 U.S.C. § 654, and 42 U.S.C. § 666.

Why it matters, and the traps. File first, negotiate second. A parent who loses a job in March and files in September owes the old amount through September, and arrears do not disappear.

Turner holds there is no automatic right to counsel in civil contempt for nonpayment — but requires notice that ability to pay is the critical issue, a financial form, an opportunity to respond, and an express finding. An order jailing a parent without that finding is vulnerable.

Model language

A. Interim fee request

"Petitioner has no independent access to income or liquid marital assets. Respondent controls the marital income of approximately $[amount] per month and the parties' accounts. Petitioner requests an award of interim attorney fees and costs from marital funds in the amount of $[amount], so that both parties may participate in this proceeding on comparable footing."

B. Debt allocation with teeth

"Respondent shall be solely responsible for the balance owed to [creditor], account ending [____], and shall refinance or otherwise remove Petitioner's name from that obligation within 120 days. Respondent shall indemnify and hold Petitioner harmless from any claim on that account, including attorney fees incurred in defending any such claim. Respondent shall provide written proof of removal within 10 days of completion."

C. QDRO provision

"The parties shall divide the [plan name] account of [participant] so that [alternate payee] receives [amount or percentage] as of [valuation date], together with gains and losses from that date to the date of segregation. [Party] shall retain a qualified drafter within 30 days; the cost shall be borne [allocation]. The order shall provide for survivor benefits as follows: [terms]. The parties shall not consider this provision satisfied until the plan administrator has accepted the order in writing, and shall each cooperate promptly with any administrator request."

D. Deadlock-breaking provision

"The parties shall share joint legal decision-making. If they cannot agree after conferring in writing within [N] days, they shall [consult the child's treating provider / attend one session with a parenting coordinator / submit the question to [neutral]] before either party seeks relief from the court."

Failure modes, ranked

Not answering a petition, and defaulting on everything.
Trading across categories — giving up retirement to keep the house.
Not tracing separate property while records still exist.
Ignoring pre-tax versus post-tax character in an "equal" split.
Never drafting or entering the QDRO, or never confirming acceptance.
Allocating joint debt without refinancing or indemnification.
Incomplete disclosure, which loses every issue at once.
Agreeing to a lopsided temporary schedule.
Never requesting interim fees.
Missing the 26 U.S.C. § 6015 deadline on joint returns.
Waiting to file a modification until after the arrears accumulate.
Accepting a contempt order without an ability-to-pay finding.
A parenting plan too vague to operate without cooperation.
Forgetting to change beneficiaries after the decree.

The inventory, worked

Phase 5 is the phase people skip because it looks like bookkeeping. Here is what it produces when it is actually done, using the running example.

Asset	Value	Title	Characterization	Note
Residence	$310,000 equity	Joint	Marital	Refinance capacity is the constraint
His 401(k)	$412,000	His	Mixed	$61,000 premarital; growth per state rule
Her pension	11 yrs credited	Hers	Marital	No statement — coverture formula + QDRO
Joint savings	$9,400	Joint	Marital
Her inheritance	$70,000 (2019)	Was hers	Contested	Deposited into joint account — tracing required
Vehicles (2)	$19,000 combined	One each	Marital	Loans attached
His RSUs	1,400 unvested	His	Mixed	Time-rule allocation by grant date
Cards (4)	($46,000)	3 joint, 1 his	Marital	Refinance or indemnify

What the table surfaces that a narrative would not.

Row 2. The premarital contribution is separate — but only if the 2006 statement exists. It does, in a box in the garage. That single sheet is worth roughly $40,000, and it would have been thrown out in a move.

Row 3. The pension has no balance, no statement, and no obvious presence in anyone's mind. It is the second-largest asset in the marriage. Assets without monthly statements are the ones that get forgotten, and forgetting them is not curable after the decree.

Row 5. A $70,000 inheritance is separate on arrival and marital by presumption once it funds a joint account used for household expenses. The party claiming separate character bears the tracing burden. Whether the deposit slips and the four years of statements still exist decides $70,000.

Row 7. Restricted stock granted during the marriage but vesting after separation is allocated by a time rule in most states. It is routinely omitted from affidavits because it is not "money" yet.

Row 8. Three of the four cards are joint. Assigning them to one party accomplishes nothing as to the issuers — hence Model Language B.

The twenty-minute version. If nothing else in Phase 5 gets done, list every asset with a value, a title, and a characterization, and mark every asset that has no monthly statement. That last column is where the money hides.

Sequencing when there are two proceedings

Divorce rarely runs alone. When it does not, the order matters.

With a protective order. Safety first, always. The protective order proceeding is faster and its findings inform custody and exclusive possession. Do not let a divorce schedule delay it.

With a child protective case. The dependency case controls placement while it is open, and a family court custody order cannot override it. See When the State Comes to the Door: Child Protective Investigations and the Family's Rights and Responding to a Child Protective Services Investigation: A Practical Checklist.

With a bankruptcy. The automatic stay at 11 U.S.C. § 362 does not stop a divorce from proceeding to dissolve the marriage or to establish support, but it does stop division of property of the estate. Filing order matters: a bankruptcy before the decree can protect a debtor spouse and complicate the division; one after can discharge property-settlement obligations that were not characterized as support. Coordinate deliberately rather than by accident — see Preparing and Filing a Consumer Bankruptcy Case: A Practical Checklist.

With an immigration matter. Where status depends on the marriage, evaluate before filing anything. See Preparing a Family-Based Immigrant Petition and Adjustment Application: A Practical Checklist.

With a tax controversy. Innocent spouse relief has its own clock and is easier to preserve before the decree closes.

Three sentences worth memorizing

"These are three decisions, not one." — property looks backward, support looks forward, parenting answers to neither.

"Which assets have no monthly statement?" — the question that finds the pension, the options, and the business interest.

"Who is drafting the QDRO, and has the plan accepted it?" — both halves, or the asset is not actually divided.

Filing for and Responding to a Divorce: A Practical Checklist

How to use this checklist

Phase 1 — Before anything is filed

Phase 2 — Filing, service, and jurisdiction

Phase 3 — Automatic and temporary orders

Phase 4 — Disclosure

Phase 5 — The asset and debt inventory

Phase 6 — Support

Phase 7 — The parenting plan

Phase 8 — Settlement

Phase 9 — Decree and post-decree tasks

Phase 10 — Modification and enforcement

Model language

A. Interim fee request

B. Debt allocation with teeth

C. QDRO provision

D. Deadlock-breaking provision

Failure modes, ranked

The inventory, worked

Sequencing when there are two proceedings

Three sentences worth memorizing

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