If you and your spouse live in different states, filing for divorce can be more complicated. Each state has its own residency requirements that must be met in order for that state to have jurisdiction over your divorce. This article will explain the key things you need to know about getting divorced when your spouse lives in another state.
Filing for divorce across state lines is known as an “interstate divorce” and there are a few extra steps involved compared to filing for divorce when you and your spouse live in the same state. However, with some planning and legal assistance, you can successfully get divorced even if your spouse moved to another state.
Residency Requirements for Filing for Divorce
In order to file for divorce, most states require that at least one spouse meets the residency requirements in that state. Residency requirements refer to the minimum amount of time a spouse must have lived in the state in order to file for a divorce there.
Residency requirements vary by state but commonly range from 3 months to 1 year. Some states also require the filing spouse to have lived in the county where they are filing for a certain period of time, such as 90 days.
If neither you nor your spouse meets the residency requirements in any one state, you may need to wait until one of you establishes residency in a state before the divorce can proceed.
Why Does Residency Matter for an Interstate Divorce?
Residency matters because it determines which state’s divorce laws will govern your case. Each state may have its own statutes and precedents about issues like:
- Division of assets and debts
- Child custody
- Child support
If you meet the residency requirement for State A, but your spouse lives in State B, you may be able to file for divorce in State A and have that state’s laws applied. This could work in your favor if, for example, State A is better for you in how it handles community property or alimony.
What If Neither Spouse Meets the Residency Requirement?
If neither you nor your spouse meet the residency rules for your current states, you may need to consider moving back to a state where one of you has lived for the required time.
For example, if the residency period is one year in your state, and you moved there 11 months ago, you may need to go back to the state either of you previously lived in order to file.
In some cases, you may be able to file for divorce in the state where you were married even if neither spouse lives there currently. Each state handles this situation differently.
Determining the State for Divorce Proceedings
When spouses live in different states, determining which state will handle the divorce can be complicated. In general, the options include:
- Filing in the state where you currently reside, if you meet the residency requirements
- Filing in the state where your spouse currently resides
- Filing in the state where you and your spouse last lived together
- Filing in the state that issued your marriage license
Most experts recommend filing in your current home state, as long as you meet the residency requirements. This allows you to proceed with the divorce sooner and gives you home court advantage. Proceedings will also take place closer to where you live.
However, if your spouse meets the residency requirements in their state but you don’t yet meet them in yours, it may make sense to file in your spouse’s state. Doing this prevents your spouse from initiating the divorce there first and gives you more control over the proceedings.
Filing for Divorce in Your Home State
If you meet your state’s residency requirements, you can file for divorce there even if your spouse lives in another state. Here are the key steps:
- Consult with a local divorce attorney to discuss state law and ensure you meet the residency requirements.
- Have your divorce attorney draft the initial divorce petition according to state guidelines.
- File the petition along with any other required divorce papers with your county’s court clerk. Pay the filing fee.
- Serve divorce papers to your spouse. Your attorney can arrange formal service to meet legal requirements.
- Provide proof of service to the court to show your spouse was properly notified about the divorce.
- Proceed with the divorce process in your state. Your spouse can participate remotely.
The court in your state gains jurisdiction once your spouse is properly served. This allows the divorce to move forward even if your spouse objects or prefers it be handled elsewhere.
Divorce in the State Where Your Spouse Lives
If you and your spouse live in different states and you want to get a divorce, you will need to file in the state where you currently reside or the state where your spouse resides.
Filing for divorce in your spouse’s state is an option if:
- Your spouse meets the residency requirements there but you don’t in your home state.
- You are willing to travel to your spouse’s state for proceedings.
- Your spouse agrees to the venue.
- You have property there subject to equitable division.
- Your spouse initiates the divorce first in their home state.
The same basic steps apply in terms of hiring an attorney, filing the petition, serving your spouse, and so on. The state laws of your spouse’s location will determine how the divorce proceeds.
When one spouse lives abroad, a foreign divorce may be required. Key tips include:
- Verify residency requirements in the foreign country.
- Hire an attorney licensed in that country.
- Determine if the country will recognize a U.S. divorce decree.
- Understand the implications for property division, spousal support, and custody.
- Check if a U.S. divorce is also needed for matters like tax filing status and retirement accounts.
International divorces add expense and paperwork. A lawyer knowledgeable in both countries’ laws can guide you through the intricacies.
How to Notify Your Spouse About the Divorce Petition
In order for a divorce to proceed, you must properly notify your spouse that you have filed. Rules vary by state, but generally you can serve divorce papers by:
- Certified mail with proof of delivery
- Personal service by a law enforcement officer or process server
- Publication in a local newspaper if your spouse’s address is unknown
You cannot simply send the papers yourself. Proper service ensures your spouse has been officially notified of the divorce under your state laws.
Child Custody in Divorces Across States
Child custody and visitation issues bring an added layer of complexity to interstate divorces. In general:
- The state that issues the divorce will also decide child custody.
- Custody orders must comply with the laws of the state where the child resides.
- The Uniform Child Custody Jurisdiction and Enforcement Act prevents competing custody orders between states.
- Parents can modify out-of-state custody orders by filing in the child’s home state after meeting residency requirements.
Your divorce attorney can request temporary orders as needed to enforce or establish custody until the divorce is finalized. Playing by the rules prevents enforcement issues down the road.
Should I Hire a Divorce Attorney in My State or My Spouse’s?
It is usually best to hire an experienced divorce attorney licensed in your state to represent you. This ensures your lawyer is familiar with the residency requirements, divorce laws, and procedures in the state where you plan to file.
However, for an interstate divorce, you may also need to hire a second attorney licensed in your spouse’s state to manage issues there like child custody matters or property division. You’ll need attorneys familiar with the local laws in both states involved.
Frequently Asked Questions
What if I don’t know where my spouse is living now?
If you don’t know your spouse’s current address, you can typically serve them by publication after making diligent efforts to locate them. However, this can delay the divorce. A divorce lawyer can help with this.
What if my spouse and I live in a community property state? How does that impact divorce?
In community property states, most assets and debts acquired during the marriage are considered jointly owned. This can complicate the divorce settlement and property division. You’ll want to hire an attorney experienced with community property state divorce law.
Can I file for divorce in my state if my spouse moved overseas?
If your spouse has moved abroad, you may be able to file for divorce in your home state as long as you meet the residency requirements. However, enforcing the U.S. divorce decree in another country can be challenging.
Can I get divorced in one state while my spouse gets divorced in another?
Generally, no. You cannot have simultaneous divorce actions taking place in two different states. The state that enters a final decree first will control the divorce. Talk to a lawyer to coordinate.
- Each state has residency rules that must be met in order to file for divorce there. This often requires living there for 6 months to 1 year.
- The state where you file dictates which divorce laws will apply to issues like property division and child custody.
- You must properly serve divorce papers to your out-of-state spouse according to the requirements of your state.
- It is best to hire a divorce lawyer licensed in the state where you plan to file, but a second lawyer may be needed in your spouse’s state.
- If your spouse violates the divorce decree, you may need to go back to the divorce-granting state to enforce the order.
Getting divorced when your spouse lives in another state adds an extra layer of complexity. But understanding the key rules around residency, jurisdiction, and serving papers allows you to successfully navigate an interstate divorce. With some legal help, you can get through this difficult process even when your spouse moved away.