Where Can you File for a Divorce When Your Spouse Resides in Another State?

By A.M. Hill

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.

Residency Requirements

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.

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Property Considerations

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.

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Divorce & Jurisdiction


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Can a Divorce Be Pending in Two States?

It is possible for a divorce to be pending in two states at once. This can occur when a husband and wife live in separate states and each of them files for divorce in their home state at around the same time. When a divorce is pending in two states, it complicates the process and can extend the length of time it takes for the divorce to finalize. Also, even though a divorce can be pending in two states, only one state can issue the final divorce judgment and this would terminate the case in the other state.

Reasons to Change Jurisdiction in Child Custody

Changing jurisdictions during your divorce can complicate matters, but it’s not always possible or desirable to stay in one jurisdiction until the process is complete. You may want to move closer to your family or you may feel another state’s laws are more sympathetic to your situation. However, you may not be able to legally move your children to another jurisdiction.

Leaving the State After Filing for Divorce

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.

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