A divorce case can be complex enough when both parties live in the same state. If one spouse moves away, the legal matter can become even more complicated. Living in a different state than your spouse during a divorce can make it difficult to know where to file. Whether you have lived different lives apart for years or only recently separated, the answer may be the same. It will depend on each state’s residency requirements and who files first.
Meeting the Residency Requirements
You do not need to file for divorce in the same state or country where you and your spouse married. Instead, you will file where one or both of you have established residency. Most states, including California, require a person to meet the residency requirements before filing for divorce. To meet California’s residency requirements, you must have lived in the state for a certain amount of time.
- State resident for at least six months
- County resident for at least three months
- Proof of residency (e.g. utility bills, paystubs, etc.)
In general, you or your spouse must be living in the state in which you wish to file. For example, if you nor your spouse live in California, you cannot file in California. If you live in different counties in the same state, you may file in either county where one of you has lived for at least three months.
If you do not meet California’s residency requirement, you have a couple of options. You may wait a few months until you do meet the requirement, agree to file in your spouse’s state instead (if he or she meets the residency requirement) or move to a state that does not have a residency requirement. You could also file in your previous county in California if you lived there for at least three months. You could also file for legal separation instead of divorce. Separation does not have a residency requirement in California.
Deciding on a Filing State
If only one of you meets the state’s residency requirements, that spouse could proceed with filing the divorce petition. If both you and your spouse meet your respective states’ residency requirements, you will have to file first if you wish to file in your state. The person who files first will generally get to proceed with the divorce in his or her state. The court in the other state must honor the divorce in your state if finalized.
If you made a mistake such as failing to notify your spouse of the divorce, however, the other state may have the right not to view the divorce as valid. You must provide notice to your spouse in the other state of the divorce in some way, such as by hiring someone to serve your spouse the papers. Failing to send the papers properly could make for an invalid divorce, even if you proceed with your end of the case to finalization.
It is important to note one state will not have jurisdiction over property in another state. The state will have jurisdiction over the marriage and whether to dissolve it, but it may not be able to rule on matters involving homes, vehicles or other property in a different state. The court may also be unable to decide on child custody if the children do not live in that state. Work with an attorney for help with these complex matters if you and your spouse live in different states.
An attorney can help you and your spouse determine which state and/or county is best for filing your divorce petition. That may be where you live or where your spouse lives depending on your situation and goals for the case. Filing in the correct court can give your divorce case a strong foundation.