The questions to ask when getting a divorce fall into a handful of categories that matter long after the case is closed: where and how to file, who represents you, what happens with the children, how property and debt get split, whether alimony is on the table, how your taxes change, and what benefits you keep or lose. Ask them early. The answers shape outcomes you’ll live with for years.
Questions to Ask Before You File
Start with jurisdiction. Every state has a residency requirement, and if you haven’t lived in your state long enough the court will reject your petition. Requirements range from no minimum waiting period in a handful of states to six months or a year in others. If you or your spouse recently relocated, ask which state’s courts have jurisdiction and whether filing in one state versus another changes how property or support is handled.
Then ask which process fits your situation. Not every divorce goes to a courtroom. Mediation uses a neutral third party to help you negotiate, with mediators typically charging $100 to $600 per hour and both spouses sharing one professional. Collaborative divorce gives each spouse their own attorney but commits everyone in writing to settle out of court; if talks break down, both attorneys must withdraw and you start over with new counsel. Litigation puts the decision in a judge’s hands and is the most expensive and time-consuming route. If you and your spouse generally agree on the big issues, mediation or collaboration can save thousands. If there’s a significant power imbalance, hidden assets, or domestic violence, full representation in litigation is usually the safer choice.
Finally, ask what documents you’ll need to gather. At a minimum, expect to produce your marriage certificate, birth certificates for any children, recent tax returns, pay stubs, bank and investment statements, mortgage documents, and records of outstanding debts. Getting organized before you file saves time and legal fees once the case is moving.
Questions to Ask a Divorce Attorney
Ask how much of the attorney’s practice is devoted to family law and divorce specifically. An attorney who handles divorces occasionally is not the same as one who does them every day.
Get the fee structure in writing. Most divorce attorneys bill hourly, with rates that vary by experience and location, and many require an upfront retainer that functions as a deposit drawn down as work is performed. Ask what the retainer covers, what happens when it runs out, whether billing is itemized, and what paralegals and junior associates charge per hour, since their time usually costs less.
If full representation is out of reach financially, ask about unbundled legal services, where an attorney handles specific tasks such as reviewing a settlement agreement or coaching you before a hearing while you handle the rest yourself. This approach is increasingly common in family law and can save thousands.
Two practical questions people often forget: how will the attorney communicate with you, and how quickly should you expect responses? Clarify whether updates come by email, phone, or a client portal, and what the typical turnaround time is for non-urgent questions. Mismatched expectations about communication cause more client frustration than almost anything else.
Questions About Custody and Child Support
Courts evaluate custody through one lens above all others: the best interests of the child. Ask your attorney how courts in your state apply that standard and what factors a judge will weigh. Common considerations include each parent’s living situation, the child’s existing school and social ties, each parent’s work schedule, and the child’s own preferences if they are old enough to express them.
Make sure you understand the two types of custody, because they are decided independently. Physical custody determines where your child lives day to day. Legal custody gives a parent the authority to make major decisions about education, healthcare, and religious upbringing. One parent can have primary physical custody while both parents share legal custody.
Push for detail on visitation. Ask how holidays, school breaks, and summer vacations will be divided, and how extracurriculars, travel, and relocation will be handled. A vague schedule invites future conflict; a detailed parenting plan prevents it.
Child support follows guidelines set by your state and is typically based on both parents’ incomes, the number of children, the custody-time split, and specific needs like healthcare or childcare. Ask your attorney to walk you through the calculation so you understand the likely range rather than being surprised by the number.
One question that often gets missed: which parent claims the children as dependents on their tax return? By default the custodial parent, meaning the parent the child lives with for the greater number of nights during the year, claims the child. The custodial parent can release that claim to the noncustodial parent by signing IRS Form 8332, which allows the noncustodial parent to claim the child tax credit instead.1Internal Revenue Service. Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent This is a real bargaining chip. If one parent earns significantly more, having that parent take the dependency claim can produce a larger total tax benefit that both sides can share. Make sure your agreement addresses this explicitly, including whether the arrangement applies to specific years or indefinitely.
Questions About Property and Debt Division
Start with the distinction that drives everything else: what counts as marital property and what counts as separate property in your state? Marital property generally includes everything either spouse earned or acquired during the marriage, regardless of whose name is on the title. Separate property includes what each spouse owned before the marriage, plus gifts and inheritances received individually during it.2Justia. Separate vs. Marital Assets Under Property Division Law The catch is that separate property can become marital property when it gets mixed with marital funds or when the other spouse’s efforts increased its value. A house you owned before the marriage may still have appreciation treated as marital property if both of you paid the mortgage. Ask how your state handles these gray areas.
Retirement Accounts
Retirement accounts are often the largest marital asset after the family home, and the rules differ sharply by account type. For employer-sponsored plans like 401(k)s, pensions, and 403(b)s, you need a Qualified Domestic Relations Order. A QDRO is a court order directing the plan administrator to pay a portion of one spouse’s retirement benefits to the other.3Internal Revenue Service. Retirement Topics – QDRO Qualified Domestic Relations Order When handled properly, the receiving spouse can roll those funds into their own retirement account without triggering taxes or early-withdrawal penalties. Without a QDRO, a withdrawal from one of these plans is just a taxable distribution.4U.S. Department of Labor. QDROs Under ERISA – A Practical Guide to Dividing Retirement Benefits
IRAs follow different rules entirely. A QDRO does not apply. IRA funds are moved directly from one spouse’s account to the other under what the tax code calls a transfer incident to divorce. As long as the transfer is made under a divorce or separation instrument it is not a taxable event, and the receiving spouse treats the transferred IRA as their own going forward.5Office of the Law Revision Counsel. 26 USC 408 – Individual Retirement Accounts Cashing out an IRA instead of transferring it creates an entirely avoidable tax bill.
Business Interests
If either spouse owns a business or professional practice, valuation becomes one of the most contested parts of the case. Ask whether a formal business valuation is needed, who pays for it, and whether both sides should hire their own expert or agree on a neutral appraiser. This is where forensic accountants earn their fees.
Debts and Credit Exposure
Debts get divided too, and this is where people get hurt after the decree is signed. Ask about mortgages, car loans, student loans, and credit card balances, and understand the critical point that surprises many people: your divorce decree can assign a debt to your ex-spouse, but that does not change the original contract with the creditor. If your name is still on a joint credit card or mortgage and your ex-spouse stops paying, the creditor can come after you and your credit score takes the hit.
Ask your attorney about requiring the responsible spouse to refinance joint debts into their name alone as part of the settlement. In the meantime, open individual bank accounts and redirect your income there, monitor joint accounts for unusual activity, and consider whether freezing or closing joint credit cards makes sense. Document all balances and transactions at the time of separation so there’s a clear financial snapshot if disputes arise later.
Questions About Alimony
Spousal support is not automatic. Courts weigh factors including the length of the marriage, each spouse’s income and earning capacity, the standard of living during the marriage, and each spouse’s age and health. Ask what types of alimony your state recognizes. Many states offer temporary support during the divorce, rehabilitative support to help a lower-earning spouse become self-sufficient, and in long marriages, longer-term or permanent support.
Ask about taxes, because the rule changed and still catches people off guard. For any divorce or separation agreement finalized after December 31, 2018, alimony payments are not deductible by the payer and not counted as taxable income to the recipient.6Internal Revenue Service. Topic No. 452, Alimony and Separate Maintenance Under the prior system, the deduction made larger alimony payments easier for the higher earner to absorb. Now the payer bears the full cost, which tends to pull negotiated amounts down, but the recipient keeps every dollar.
Ask whether life insurance should be required to secure future support. If the paying spouse dies unexpectedly, child support and alimony obligations typically die with them. A policy naming the recipient spouse or a trust as beneficiary provides a safety net. Your agreement should specify the coverage amount, who pays the premiums, and what happens if the policy lapses.
Questions About Taxes After Divorce
Your filing status for the entire tax year depends on your marital status on December 31. If your divorce is finalized by the last day of the year, you file as single or, if you qualify, head of household for that whole year. If you are still legally married on December 31, even after months of separation, you file as married, either jointly or separately.7Internal Revenue Service. Publication 504, Divorced or Separated Individuals This makes the timing of your final decree surprisingly consequential. If your divorce is likely to be finalized near year-end, ask your attorney and a tax professional whether accelerating or delaying the final date by a few weeks changes your overall tax picture.
Ask about tax basis on anything you receive. Transferring property between spouses as part of a divorce is not a taxable event under federal law; no gain or loss is recognized at the time of transfer, and the receiving spouse takes over the original owner’s tax basis in the property.8Office of the Law Revision Counsel. 26 US Code 1041 – Transfers of Property Between Spouses or Incident to Divorce The transfer must happen within one year after the marriage ends, or be related to the divorce.
The hidden trap sits in that inherited basis. If your spouse transfers the family home to you with a basis of $200,000 and you later sell it for $500,000, you owe capital gains tax on the $300,000 difference, minus any applicable exclusion. Accepting a $500,000 house is not the same as accepting $500,000 in cash. Ask your attorney and tax advisor to evaluate the after-tax value of every significant asset before you agree to a division.
Questions About Health Insurance and Social Security
Losing health insurance blindsides people who have been on a spouse’s employer plan for years. Divorce is a qualifying event under federal COBRA law, which lets the non-employee spouse continue on the former spouse’s employer health plan for up to 36 months. Coverage is identical to what you had during the marriage, but you pay the full premium yourself. You or a family member must notify the plan administrator within 60 days of the divorce, and the plan administrator then has 14 days to send election information.9U.S. Department of Labor. FAQs on COBRA Continuation Health Coverage for Workers Miss these deadlines and you lose the right to COBRA entirely.
Losing coverage because of a divorce also opens a special enrollment period on the federal or state health insurance marketplace. You have 60 days from the date you lose coverage to enroll.10HealthCare.gov. Getting Health Coverage Outside Open Enrollment Marketplace plans can be significantly cheaper than COBRA, especially if your post-divorce income qualifies you for premium subsidies. Compare both before defaulting to one.
Ask about Social Security if your marriage is close to the ten-year mark. If your marriage lasted at least ten years, you may be eligible to collect Social Security benefits based on your former spouse’s work record. You must be at least 62, currently unmarried, and not entitled to a higher benefit on your own record; your former spouse must be eligible for retirement or disability benefits; and you must have been divorced for at least two years.11Social Security Administration. Code of Federal Regulations 404.331 If you qualify, you can receive up to 50% of your ex-spouse’s full retirement benefit, and claiming it does not reduce what your ex or their current spouse receives. If you have been married nine years and eight months, waiting a few more months can be the difference between qualifying and losing this benefit permanently. Your ex-spouse’s remarriage has no effect on your eligibility; yours does. If you remarry, you generally lose access to your former spouse’s record unless that later marriage ends.
Questions About What Happens While the Case Is Pending
Divorce can take months or longer to finalize, and life doesn’t pause in the meantime. Ask about temporary orders, which courts can issue to address urgent issues while the case is pending. These can cover temporary child custody and visitation, spousal and child support, use of the family home, and restrictions on spending marital assets. Without them, you are relying on goodwill, which is often in short supply during a contested divorce.
Ask whether your state imposes automatic financial restraining orders once a divorce is filed. These typically prevent either spouse from draining bank accounts, running up unusual debt, canceling insurance policies, or changing beneficiary designations.
If you suspect your spouse is hiding income or assets, ask about discovery. Discovery is the formal legal mechanism for forcing the other side to turn over financial records, including mandatory financial disclosures, requests for tax returns and bank statements, and sometimes depositions where your spouse answers questions under oath. When significant assets are at stake, forensic accountants can trace funds, identify undisclosed accounts, and value complex holdings. Skipping discovery because of cost concerns can be a very expensive mistake.
Ask for a realistic timeline. Many states impose mandatory waiting periods between filing and finalization, ranging from none to several months or more. An uncontested divorce where both spouses agree on everything moves far faster than a contested case requiring trial. Complex asset division, custody disputes, and discovery requests all add time. Ask whether your case will require court appearances and how the final decree is issued and enforced.
What to Do to Protect Yourself
A divorce decree does not automatically change the beneficiary designations on your life insurance policies, retirement accounts, or bank accounts. If you don’t update them yourself and something happens to you, your ex-spouse could receive those assets by default. As soon as your divorce is finalized, contact every financial institution where you hold accounts and update your beneficiaries, and revise your will, powers of attorney, and healthcare directives at the same time.
From the moment you begin contemplating divorce, keep detailed records of your financial situation: account balances, property values, income, debts, and monthly expenses. Take screenshots or print statements. If your spouse controls the finances, this documentation becomes critical because you can’t divide what you can’t prove exists. Bring these records to your first attorney meeting so you can have a productive conversation about your situation rather than starting from scratch.
If domestic violence is part of your situation, the questions change entirely. Ask your attorney about protective orders, which can grant you exclusive use of the marital home and restrict your spouse’s contact with you and your children. Safety planning should come before financial planning. Courts handle these requests on an emergency basis, and legal aid organizations can help if cost is a barrier.