In most divorces, the separating couple will remain in the same state -- probably even the same county or town. Filing the initial paperwork for a divorce is a straightforward process when the parties live in the same jurisdiction. In some situations, however, one or both spouses move to another state. In these cases, it is important to familiarize yourself with residency requirements before you file for divorce.
If you and your spouse live in different states, you can bring a divorce action in either state as long as you or your spouse meets that jurisdiction's residency requirements. The majority of states have minimum residency requirements, with most ranging between six months and one year. It does not matter where your marriage took place. As long as you have lived in your state for the required length of time, you can file for divorce in that state, even if your spouse resides in another state.
Complications With Children
Even if you have lived in a state long enough to meet the residency requirements, the same might not be true for your children. If you have minor children who live with your spouse, the courts in your home state will not have the authority to decide custody issues. The Uniform Child Custody Jurisdiction and Enforcement Act has been adopted by every state except Massachusetts. Under the UCCJEA, a child must live in one state continuously for six months before that state's courts can rule on their custody. For this reason, it might be necessary to file for divorce where your children reside.
Although you can file for divorce in any state where you or your spouse have currently established residency, problems can arise when your assets are located in another state. Filing for divorce in one state when the majority of your property is in another state adds a layer of complication to the divorce. Although courts in different states have disagreed about how to divide out-of-state property, the trend is to apply the law of the state where the divorce was filed. If you own significant assets outside your home state, there may be benefit to filing where your property is located.
Choosing the Best State for Your Case
When you and your spouse live in different states, you usually have the option to file in either jurisdiction. If you are still on friendly terms, discuss which state is more likely to offer you a favorable outcome. Known informally as "forum shopping," this practice allows couples to select the state with laws that best complement their specific circumstances, including property division and custody issues.
- American Bar Association: Family Law Quarterly: Chart 4: Grounds for Divorce and Residency Requirements
- National Paralegal College: Divorce Jurisdiction
- U.S. Department of Justice, Office of Justice Programs: Juvenile Justice Bulletin: The Uniform Child-Custody Jurisdiction and Enforcement Act
- American Bar Association: Marital Property Rights of Mobile Spouses
- Womens Law: Parental Kidnapping
- Jupiterimages/Comstock/Getty Images