If you and your spouse have separated and are living in different states, you may wonder where you should file for divorce. Maybe you've heard some states' divorce laws could work in your favor. Can you file in one of those?
Maybe, but first you have to meet the state's residency requirements.
You can't just pick the state you think will give you the best “deal” in your divorce. All states have rules about who can file and when.
First, the state court has to have jurisdiction (the legal authority to make decisions) over your divorce. This is important because without it any decisions the court makes are not valid.
Once you know which states you can legally file in, then it's time to think about how those state's laws may affect your final divorce agreement.
Establishing residency and jurisdiction
The court automatically has jurisdiction over a spouse who meets the state's residency requirement. In most states, at least one spouse must live there for some minimum amount of time first, usually six months to a year.
Some states also have local residency requirements. For example, in California, you must have lived in the state for six months and the county where you file for three months.
Three states—Alaska, South Dakota, and Washington—have no minimum residency requirement. You just have to prove you live in the state at the time you file.
But one spouse's residency doesn't give the court jurisdiction over the out-of-state spouse. It has to gain jurisdiction before any decisions it makes about things like property division, custody, and support can be enforceable.
The court generally gains jurisdiction when your spouse does one of two things:
Is properly served with your petition. Usually this has to be in-person service.
Consents to jurisdiction. Signing the affidavit of service or showing up for a court date generally constitutes consent.
Sometimes jurisdiction is in question if both spouses file at about the same time in different states (called concurrent filing). In these cases, the first petition filed usually takes precedence. But who notified the other first may also affect this decision. It's best to be the first to both file and serve your spouse.
Variations in state law
How states handle divorce issues—such as property division, child custody, child support, and alimony—can vary widely. Depending on your situation, filing in one state may be better for you than another.
For example, a few states divide all marital property equally (called community property states). In others, property must be divided equitably (fairly), which may or may not be a 50/50 split.
States can also differ in how they prefer to award custody or in their formulas for calculating child support. How long you have to pay child support can also vary. In some states you may have to keep paying for adult children if they're in college.
Another consideration for same sex couples is whether a state even recognizes your marriage. If it doesn't, it's unlikely to grant you a divorce, because it can't dissolve a union that doesn't exist according to its laws.
As long as everything was handled legally (service, etc.) all states will recognize a divorce granted in any other state. Reciprocal laws in all states also mean that orders like child support are enforceable in any state.
There are a few things to keep in mind about this, though:
Although any state can enforce the orders in a divorce decree, in many cases only the court that granted the divorce can modify its terms. There are some limited exceptions.
If for some reason the court granting the divorce did not gain jurisdiction over the nonresident spouse, orders like property division and child support may not be valid.
States that don't recognize same sex marriage may also refuse to recognize or enforce a divorce between two people of the same gender.
No matter where you decide to file, having a lawyer familiar with family law and the laws of the state where you file is important. Even if you and your spouse agree on terms, you want to be sure your interests, and those of your children if any, are protected.
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