What Determines the State you get Divorced In

A common mistake people make is believing they must divorce in the state in which they were married. This is simply not the case. When it comes to divorce, you typically file for divorce in the state in which you currently reside. However, if you and your spouse are considering divorce and live in different states, things can get a bit complicated. How do you determine which state you should get divorced in? Almost every state, has strict residency requirements in order to file for divorce in that state.

If you live in California, but want to file a divorce in another state, you or your spouse typically must have been a resident of the other state for a certain legally prescribed period of time. If you and your spouse are living apart in different states, you may be confused about where and how to file for divorce. Here are some important things to consider when deciding in which state you could or should file for divorce.

Residency

The first thing to consider when filing divorce is your and your spouse’s residency. While you do not need to go back to the state that issued your marriage license, the minimum length of residency required to file for divorce in each state varies. For example, in Alaska, a married couple must have lived in Alaska for at least six consecutive months within the six years before filing for divorce (Filing for Dissolution or Divorce - Ending Your Marriage (alaska.gov)). California requires that you have been a resident for the preceding 6 months prior to filing for divorce (although, this requirement does not exist if you are filing for a legal separation – which is a different topic!). You must also have been a resident of the county in which you file for the preceding 3 months. Some states have a shorter requirement. As you can see, the law varies quite a bit from state to state, so you should contact a divorce attorney to help in understanding the residency requirements for your situation.

Proof of Residency

Once you understand the residency laws and have decided on which state you would like to file for divorce in, be prepared to provide proof of residency for both you and your spouse. This typically includes a driver’s license, voter registration card, lease agreement, utility bills in your name or a pay stub to show your place of employment. This is not often made an affirmative requirement, but you should be prepared in case there is a dispute between you and your out-of-state spouse over which state is proper.

Compare Laws in Both States

If you and your spouse reside in different states and meet the respective residency requirements, it is still important that you research divorce laws in each state. Divorce laws can vary quite a bit from state to state, and you want to make sure that you evaluate what makes the most sense for your situation. The laws of the state that you file for divorce in has the potential to significantly affect the outcome of your case.

If your case is straightforward and you and your spouse agree on how to divvy up marital assets, the state you file for divorce in might not matter much. However, if your divorce is more complicated and includes issues like alimony, business valuations (i.e. self-employed spouses), military pensions, child custody, or property division, you owe it to yourself to do your research so that you better understand which state has laws that may work more in your favor. A good divorce attorney can walk you through all of these issues.

Jurisdictional Issues

In some cases, the court may find it lacks jurisdiction over the other spouse due to their residency…or when one spouse has not had contact with the state in a meaningful manner. Additionally, a court may not be able to make decisions regarding child custody or child support depending on the situation. Typically, the child’s “home state” has continuing jurisdiction over custody issues. However, another state can assert or assume jurisdiction if the child’s home state has changed over time. While most states have fairly uniform definitions of “home state,” they do vary in some respects from state to state. A consultation with a knowledgeable divorce attorney can quickly shed light on the appropriate place to file your case.

Military Members and Jurisdiction

If you or your spouse are in the military and may be entitled to a pension as a result of your service, special requirements come into play. Federal law provides that in order for a state court to make orders relating to the division of a military retirement plan, certain jurisdictional requirements must first be met. To ensure that the court you choose has jurisdiction over your spouse’s military retirement plan (presuming you would like to share in the benefit that was acquired during the marriage), you should consider filing for divorce in a state: 1. Where the military spouse is domiciled, 2. Where the military spouse is a resident or, 3. In a state that you and your spouse agree upon. This may not be something you can control entirely due to other considerations in your case, but it is definitely worth discussing with an attorney who understands these intricacies like we do.

We have represented many military members and their spouses over the years. More recently, James R. Vercollone, CFLS served as the lead trial counsel for the spouse of a military member in which jurisdiction over a military pension was a centrally disputed issue. This complex issue made its way to the California Court of Appeal; We are proud to say that our client’s position on this issue prevailed. In re Marriage of Sullivan, 89 Cal. App. 5th 585, 306 Cal. Rptr. 3d 215, 2023 Cal. App. LEXIS 206, 89 Cal. App. 5th 585, 306 Cal. Rptr. 3d 215, 2023 Cal. App. LEXIS 206

When it comes to divorce residency and jurisdictional requirements, things can get a little complicated. It is in your best interest to consult with a divorce attorney to better understand your options so that you make the decision that is best for you. If your spouse currently lives in a different state than you and you think that your marriage is heading for divorce, it is incredibly important that you start looking into your options now so you can begin the process the correct way by making educated decisions.

If you have any questions over residency or jurisdiction issues, we would love to talk! Reach out to our team so we can set up your private, complimentary consultation today. We would love to give you the information and support you need to help you move through this challenging process.