State Residency and Getting a Divorce
When a marriage ends, it’s not uncommon for one spouse to move to a new town or even to a different state. While living in different states won’t prevent a divorce from moving forward, it does complicate things a bit. The following is a guide to getting a divorce when one spouse lives in a different state.
Just about all states require that you establish residency within their borders before you can file for divorce (Alaska, South Dakota, and Washington are the exceptions). How long you need to live there before filing will vary greatly from one state to another. For example, in Missouri, you’re considered an official resident after just 90 days; in California it’s six months; in New Jersey it’s one year.
But it’s not just the state you have to worry about. The county of the state in which you file may also require residency. For example, if you were living in L.A. County in California but have moved to Orange County and subsequently file for divorce there. Unless you've been a resident for three or more months, the court will not hear your case.
One of the reasons residency matters is that it affects which state you can file for divorce in, which in turn can have an effect on the outcome of your divorce because every state has different divorce laws.
Determining jurisdiction during a divorce becomes more complicated—but also extremely important—when spouses live in different states because only one state can have jurisdiction in a divorce. Who files first will determine the state which has jurisdiction.
For example, if you live in New York and your spouse lives in Florida, which state has jurisdiction over the divorce proceedings? The state where the papers were first filed will take charge of the proceedings (if you file first, that would be New York; if your spouse files first then it’s Florida).
Individual state laws
Before you take the filing plunge, consult a divorce attorney in the state in which you live. Filing first—or waiting for your spouse to do so—can have important consequences.
For example, some states, such as California and Nevada, are community property states, where marital property is split 50/50 in a divorce. If you live in a community property state and you file first, your spouse is entitled to an equal share of any wealth you've amassed. If your spouse doesn't live in a community property state and you wait for her or him to file, you may get to keep more of what you own.
The same principle affects other divorce issues such as child and spousal support. Different states have different formulas for determining how much gets paid out. Being the first to file—or waiting for your spouse to make the first move—can have advantages and disadvantages depending on where you live.
What if the divorce laws in your two states are about equal—would it behoove you to file first or wait? Divorce cases often involve multiple trips to the courthouse where the case is being heard. Therefore, if you file first the case will be heard in your county court, thereby saving you what could be a significant amount on travel expenses.
If you and your spouse happen to file in different states at roughly the same time (known as a concurrent divorce), which state gets the case? The state where the papers were first filed will, again, have jurisdiction over the proceedings. Even if there’s a backlog of cases or some other kind of delay, that initial court will see the proceedings through, regardless of whether papers were filed in another state.