While it is fairly common for someone to move to a different state once they separate from their spouse, doing so can present potential difficulties when formally filing for divorce and reaching final resolutions. All states require that the spouse who files for divorce be a resident of the state in which they file their divorce petition.
The amount of time required for establishing residency varies from state to state, but generally ranges from six months to one year. Residency can be defined as having a physical presence as well as the intent to remain indefinitely in that state. You are allowed to work outside of the state while establishing residency, as long as you are actually living in the state in which you are trying to establish residency.
If you and your spouse are now residing in separate states, then each of you maintains the right to file for a divorce in your current home states. As a matter of convenience, it may be best to file in your state before your spouse files in theirs; you may be required to travel there for divorce proceedings, as well as to arrange and change child support and custody orders, and property settlement agreements.
As previously mentioned, the first step will be to check your individual state’s divorce residency requirements. You can file for divorce in a state other than the state in which you are married, as long as you meet residency requirements. If you do not meet the residency requirements for the state in which you are attempting to file for divorce, your divorce complaint can be rejected.
If both spouses file for divorce at the same time, which is referred to as concurrent filing, the general rule is that whichever petition is filed and served first will proceed to court. Therefore, if you wish to file in a state that is more favorable to you in the divorce, you should file as soon as possible to avoid the issue. Once you file, then make sure that your serve the papers to your spouse, which means that they are in-person (or as close as possible) notified about the divorce and have the papers for the divorce process in their hands.
The actual divorce process will vary according to the state in which the divorce was filed, as well as property issues and child custody. Both parties must participate in all steps of the divorce process, and if any of the requirements for a legal divorce are not met, the validity of the divorce status could be affected. However, the process is typically the same once the initial petition for divorce has been filed by either spouse in the state in which they reside:
- Notification: The other spouse must be notified or served with the divorce papers; they then have twenty to thirty days to respond to the complaint. If they fail to do so, a judge will generally grant the petition. If the spouse cannot be located, such as if they moved to a different state without notifying anyone of their whereabouts, they may still be notified through “service by publication.” An example of this would be placing a notification in the newspaper.
- Temporary or Preliminary Hearing: This initial meeting is for the spouses, their attorneys, and the judge. A preliminary hearing is meant to resolve matters that need to be addressed immediately, which cannot wait until the actual trial. Examples of this include requesting temporary child support or custody, requesting exclusive use of the marital residence, and requesting instructions regarding insurance.
- Negotiations, Mediation, and Agreements: At this point the parties may attempt to solve their differences through negotiations, mediation, or other forms of alternative dispute resolution such as early neutral evaluation.
- Trial: Issues not addressed through negotiation must be addressed through trial. Each side presents their arguments as well as evidence in support of their requests. Trial is not always required, if the parties are amicable and are able to come to an agreement through mediation alone.
- Post Trial Issues: Ideally, all issues will be settled during trial. However, additional legal issues may present themselves after the trial. Appeals and child custody adjustment are some common examples.
Because each state has different laws regarding divorce and community property rules, it may be more advantageous to file for divorce in one state, as opposed to the other. Some common issues to consider include:
- Does the state allow for a no fault divorce? All states allow for some form of a no fault divorce, which are generally smoother cases. No fault divorces are essentially those in which the couple claims “irreconcilable differences” as the reason for divorce.
- However, some states still allow a spouse to allege that the divorce resulted from some fault of the other spouse. In such cases, the spouse’s misconduct may cause the court to award higher alimony payments, a larger share of marital property, etc.
- How does the state handle the distribution of property? Each state’s laws determine whether they follow community property distribution, or equitable distribution of marital property. In community property states, the marital property is divided evenly. In equitable distribution states, the marital property is divided in a way that is fair and appropriate.
- Once again, it is possible to file for divorce in a community property state even if the marriage is in an equitable distribution state; the only determining factor is residency.
- How does the state handle child support and alimony? Every state applies their own formula when calculating child support and alimony payments. Some states are more strict, whereas others are more lenient.
As logistics are concerned, it may be more practical to file in your own state as opposed to letting the out of state spouse file for divorce. However, the out of state spouse may live in a community property state, which may be more advantageous. It is a good idea to do your research and decide which works best for you.
The factors of your specific case will determine whether or not you should hire an attorney to handle your out of state divorce. A skilled and knowledgeable divorce lawyer can help educate you on your state’s residency requirements, as well as advise you in regards to which is the best state in which to file for divorce. Additionally, they will assist you fulfilling procedural requirements, and represent your interests in court while reaching a fair resolution.