What Is the Process of Getting Divorced While in Different States?

By Cindy DeRuyter, J.D.

What Is the Process of Getting Divorced While in Different States?

By Cindy DeRuyter, J.D.

When couples separate, they often want to put some space between themselves. Sometimes, this means spouses actually reside in different states. If you and your spouse live in different states but want to divorce, it is possible to do so. Still, you need to meet the residency requirements of the state where you file for divorce. If your spouse filed for divorce first in a different state, that filing and that state's laws usually control the proceeding.

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1. Determine state residency requirements in the state where you are considering filing for divorce.

If you want to divorce your spouse, first determine whether one or both of you meet the residency requirements of the state where you intend to file for divorce. These requirements differ by state. In most states, at least one of you must have been a resident for at least six months, although there are a few states with shorter or longer residency requirements.

A few states do not mandate minimum residency time periods, instead requiring only that someone filing for divorce reside in that state when filing the initial petition. In contrast, other states apply strict residency requirements of up to one year.

2. Understand the relationship between filing and jurisdiction.

The state where either you or your spouse first files for divorce generally controls the proceedings. So, if you and your spouse now live in separate states and each of you files for divorce in your respective states, the state where the divorce was first filed will likely have jurisdiction over the case.

This is often inconvenient for an out-of-state spouse, who may have to hire an attorney in another state and travel to that state for divorce-related court proceedings.

3. Determine which state's laws govern important decisions in your divorce.

In most cases, the state where either spouse files for divorce first has jurisdiction over important decisions in the divorce, including the division of the couple's assets and liabilities and whether spousal maintenance is appropriate.

Decisions on Asset and Liability Division

These decisions can impact the parties' financial situations after the divorce, as different states provide for different treatment of property and debts. In some states, substantially all property owned by the couple or by either spouse is marital property, subject to a 50/50 division. Other states apply an "equitable distribution" standard when dissolving a marriage, which takes the couple's circumstances, how the property was acquired, and other factors into consideration.

Decisions on Child Custody

When a divorcing couple has one or more minor children, decisions about child support often follow the laws of the state where the child or children are physically located. Child custody determinations in most states follow a "best interests" standard, where the judge presiding over the case considers what is in the child's best interest.

If you and your spouse live in different states and you want to end your marriage, consider your options. It may be more advantageous for you to file a petition for divorce in the state where your spouse now lives. Consider consulting with a divorce attorney who can advise you as you prepare to start the next chapter of your life.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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