Leaving the State After Filing for Divorce

by Beverly Bird
If you've already met residency requirements and filed for divorce, leaving isn't an issue.

If you've already met residency requirements and filed for divorce, leaving isn't an issue.

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Before any state can grant a divorce, it must have jurisdiction over both spouses. Jurisdiction gives it the right to decide issues between them. When you file for divorce, your petition or complaint attests to the fact that you’ve met residency requirements. This gives your state jurisdiction over you. When you serve your spouse with a copy of your petition or complaint, your state gains jurisdiction over him. After jurisdiction is established, you can usually leave the state, either temporarily or permanently. However, exceptions exist if you have children.

Residency Requirements

When you file a complaint or petition for divorce, you must meet each state's residency requirements at that time. The exact time period depends on individual state laws; some states only require a few weeks, and others require months. However, the time must generally be continuous. If your state has a three-month requirement, you can’t live there for two months, leave for a month, return for a month, then file for divorce. When you do file, jurisdiction requirements over you are satisfied, so you don’t have to stay.

Children

If you and your spouse have children, and if you’ve already filed for divorce, you should confer with an attorney before leaving your state. The laws regarding moving your children away from their other parent while litigation is pending can be very complex. When you filed for divorce, you gave your state jurisdiction over your children as well. Therefore, you would have to file a petition with the court and ask for permission to leave and take your children with you. Some states, such as Utah, are relatively lenient about granting permission. Others, such as New Jersey, are very strict. Under the terms of the Uniform Child Custody Jurisdiction and Enforcement Act, the state where you filed for divorce usually maintains jurisdiction until your divorce is final. The terms of the UCCJEA are complicated and there are sometimes exceptions. Nevertheless, you should not leave and take your children with you before you've conferred with a lawyer.

Practical Considerations

If your divorce is a relatively simple matter and you don’t think it’s going to take a lot of time, it might be easier not to leave until it is over. Divorces usually involve court appearances, and some states may require mediation between spouses in an effort to resolve issues. You might find yourself in a situation where you frequently have to travel back to the state where you filed for divorce, in order to move through the divorce process and finalize it.

Other Options

If you know before you file for divorce that you want to relocate, investigate the residency requirements and divorce laws in the state to which you want to move. If its residency requirement is only a month or so, and if its other divorce laws are favorable to your personal situation, you might want to move first, then file for divorce in your new jurisdiction. This is especially true if you have children. However, until your children have lived in the new state for six months, the UCCJEA allows your spouse to file for divorce or custody in your home state, while you're establishing residency in your new jurisdiction. Your spouse can demand that you send your children home until custody is resolved.