In theory, you and your spouse may divorce in either state in which one of you resides. The majority of states require that a spouse reside in the state before filing for divorce in that state. Proof of residency may be required, and some states require six months of residency, while others require a year.
If you and your spouse live in different states, you may divorce in either state in which one of you has met the residency requirements before filing. It may be to your advantage to file before your spouse, to save yourself the fees associated with traveling to the other state for court appearances, for example.
It is important to note that a court must have jurisdiction, or authority, over the nonresident spouse in order to make decisions regarding property division, custody, and alimony.
The nonresident spouse must be personally served with divorce papers or consent to jurisdiction. Consent includes appearing in court at the appropriate date or signing an affidavit of service, acknowledging receipt of the legal documents.
Another method of consent is following the rules of the court, such as abiding by the court-ordered child support. Though the rules vary by state, both parties are generally required to fully disclose their assets and debts during a divorce that involves disputed issues of property division.
In some places, the spouses are also required to disclose the estimated value of non-monetary items. Courts take failure to disclose finances very seriously, and can impose severe penalties on parties who hide assets. For example, a judge can order changes in divorce settlements and award the entirety of the assets you have hidden to your spouse if you intentionally fail to disclose financial information.
However, the consequences may not be as severe if the failure was inadvertent. It is possible to get a default divorce from your spouse if you cannot locate them. Though each state has its own procedures for this kind of dissolution, also referred to as divorce "in absentia," courts will generally require you to have made a diligent and reasonable effort to locate the other party before taking further action. The next step is usually to publish a notice in a newspaper that circulates in the area of your spouse's last known whereabouts, and to keep the notice in the paper for a minimum amount of time in order to provide an opportunity for them to respond.
After you fulfill certain additional requirements that may apply in your state, such as filing affidavits regarding your efforts to notify your spouse of the divorce, the court can enter a divorce ruling without your spouse's signature. Working with a lawyer may be advisable under these circumstances, as the requirements for obtaining divorce by publication are complex in many states. Division of property during divorce varies depending on which state's law applies.
Legal separation effectively ends a relationship, and it is a judicially recognized separation between spouses. But the marriage is intact, and the spouses cannot remarry or enter into a domestic partnership with others. In contrast, a couple seeking a divorce asks the court to dissolve the marriage, most often based on the grounds that the parties have irreconcilable differences that have resulted in the breakdown of the marriage.
A legal separation involves a court order setting forth the rights and duties of the couple while they are still married but living apart. Remaining legally married may prove advantageous for personal or financial reasons, and a court will divide property and determine alimony, child custody, and child support.
Similarly, in divorce proceedings, the court also decides these issues. In a legal separation, this is called separate maintenance. In some states, a trial separation in which the couple sees whether they want to pursue a legal separation or divorce does not result in assets or debts being split.
They remain marital property. A trial separation has no real legal effect and is not a legal separation. Three states -- Alaska, South Dakota and Washington -- have no residency requirement.
Most states also require that the party be a resident in the county of filing for a shorter a period of time than the state requirement. The residency must generally be continuous; that means if the filing spouse's state has a three-month requirement, the filing spouse cannot live there for two months, leave for a month, return for a month, then file for divorce. After the filing, however, jurisdiction requirements are established, so the filing spouse may leave.
In their divorce laws, some states use the word domicile in their statutes instead of residency. There's a distinction. Couples may own property in different states, but not live in all of them. A vacation home or a rental property are residences but not the couple's domicile.
Their domicile is the place where they receive mail, pay taxes, vote and are licensed to drive -- where they actually live. Before any state can grant a divorce, it must have jurisdiction over the spouses, which gives it the right to decide issues between them.
In a divorce, the Petition or Complaint attests to the fact that the filing spouse meets the residency requirements, which gives the state jurisdiction. Serving the spouse with the divorce papers means the state also gains jurisdiction over him or her. After divorce jurisdiction is established, a filing spouse can usually leave the state, either temporarily or permanently.
However, exceptions exist if there are children. In determining domicile, courts consider where a person's family lives, where he or she votes, auto registration and drivers' license, participates in community activities, and place of employment. Moving is inevitable. A spouse gets a new job. One spouse wants to be closer to his or her parents.
Families relocate across state lines every day, and usually the last thing that a spouse thinks about is how this move could impact a future divorce proceeding.
But, this is something that you can— and should—consider prior to moving. No two states are the same, and some are drastically different in what they offer to divorcing couples. For instance, one state might favor the awarding of alimony, while another makes it very difficult to obtain. One state might force an obligor to pay thousands more in monthly child support than a neighboring state. Where you file for divorce matters.
In community property states, the marital property is divided evenly. In equitable distribution states, the marital property is divided in a way that is fair and appropriate. As logistics are concerned, it may be more practical to file in your own state as opposed to letting the out of state spouse file for divorce. However, the out of state spouse may live in a community property state, which may be more advantageous.
It is a good idea to do your research and decide which works best for you. The factors of your specific case will determine whether or not you should hire an attorney to handle your out of state divorce.
Additionally, they will assist you fulfilling procedural requirements, and represent your interests in court while reaching a fair resolution. Travis Peeler. Travis earned his J. Travis has written about numerous legal topics ranging from articles tracking every Supreme Court decision in Texas to the law of virtual reality. In his spare time off from the legal world and quest for knowledge, this 3rd degree black belt and certified instructor aspires to work with various charities geared towards bringing access to entertainment and gaming to all persons.
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