Are there any residency requirements for a divorce filing?
With the exception of Washington, South Dakota and Alaska, all states have a residency requirement for divorce filing – you must have lived in that state for a certain period of time to be eligible to file a divorce proceeding in that state. This time period is 6 months in most states but it can less or more depending on the state law. The court that hears your divorce petition will have jurisdiction over other issues of the divorce such as child support & custody, alimony and property division. So it is important that you file in your home state so that you can avoid the need to travel to another state every time there is a hearing. If your spouse is living in another state and is likely to file a divorce petition in that state, you should file in your state first. Otherwise you will have to travel to your spouse’s state every for the hearings.
Here are the residency requirements of the different states
Residency Requirement of 180 days or 6 months
Alabama, California, Delaware, D.C, Florida, Georgia, Hawaii, Indiana, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Vermont, Virginia, Wisconsin
Residency Requirement of 1 year of 12 months
Connecticut, Iowa, Maryland, Massachusetts, Nebraska, New Jersey, New York, Rhode Island, South Carolina, West Virginia
Residency Requirement of 90 days
Arizona, Colorado, Illinois, Missouri, Montana, Utah
Residency Requirement of 60 days
Arkansas, Kansas, Wyoming
Residency Requirement of 6 weeks
Is there a difference between domicile and residence?
Your presence within the state is important for the purpose of residency requirements. In some states this presence is called domicile while in others it is called residency. If the laws in your state require a domicile in the state, it means you must have a fixed and permanent address in that state where you intend staying. If your state only requires you to be resident of that state, then you only need to be present in that state. A person can have many residences but only one domicile. For example, Tom who is a professional truck driver travels a lot. He sometimes stays in Florida and sometimes in Arizona, where the trucking company he works for is based. His permanent home however is in Kansas where his wife and two kids are staying. All his credit card and other bills as well as correspondence are addressed to his address in Kansas. So Tom can be a resident of three states – Arizona, Florida and Kansas but his domicile is Kansas.
If your state law says that you must be a resident, then you must have stayed in that state for a specified period of time. Establishing domicile is more difficult than establishing residency. Domicile requires proof of true residence. The following are some of the factors considered by the court to determine domicile:
• Where does the remaining family member stay?
• Where are you listed as a voter?
• Where do you take part in community activities?
• Where is your central place of work?
• Which state has issued your driver’s license and where is your car registered?
• Where do your kids go to school?
• Where is your bank located?
If you have more than one residence, the order in which you acquired them will play a key role along with how you paid for them and how you use them.
If your spouse lives in another state, then your home state court may grant the divorce but will not decide on issues such as child custody and property division.
Can I move to another state or county and file for divorce?
Yes you can, provided you meet the residency requirements in that county and state. Your divorce will be recognized in all states. However the divorce court may not decide on the other issues of divorce such as child custody & support, alimony and property division. However, if your spouse living in the other state consents to the jurisdiction of the court, the court can decide on these issues as well. This should not be a problem in case of an uncontested divorce.
If you have been served with divorce papers from another state or country, contact an experienced divorce attorney. The divorce laws are complex. In such cases there are many complex issues including how long the parties have resided in that states, the number of children, etc.
What state has jurisdiction over child custody?
Generally, the child’s home state will have jurisdiction unless another state assets continuing jurisdiction. The state where the original custody order was passed can assert continuing jurisdiction over any future proceeding provided that there is a provision for exercising jurisdiction under the laws of that state and one of the parties is a resident of that state. States like Alaska use the home state test as the sole basis for jurisdiction.
What state has jurisdiction over the division of retirement plans and military pensions?
The state having personal jurisdiction of the spouse whose retirement plan is to be divided will have jurisdiction. This is generally the state of residence or domicile of that spouse. If the retirement plan has sufficient contacts with another state, the courts may hold that the other state has jurisdiction. Only the court in the state where the spouse is residing or domiciled can exercise jurisdiction over military pension. However the spouse may consent to the jurisdiction of a court from another state. The place of military assignment cannot be used as a ground for jurisdiction. State law will determine the treatment of military pension in case of a divorce. Check with your state law.
My spouse has moved to another state. Can I still file the divorce petition in my state?
Yes you can, provided you meet the residency requirements of your state. Ideally you should have your spouse sign the papers prior to your physical separation. If your spouse has left the country, you should try and get your spouse to sign the paper. If your spouse has moved out and does not appear in the court, then you can get a default judgment if you can prove that your spouse knew of the proceeding but did not appear.
What happens if I cannot find my spouse?
You can apply for a missing spouse divorce if you cannot find your spouse. The fact that you do not know where your spouse is should not prevent you from getting a divorce. You must prove that you made diligent good faith attempts to locate your spouse. You can serve the divorce papers on your spouse by publishing the summons in a local newspaper. The exact procedure for divorce when one spouse is missing varies from state to state. Generally you must complete all the formalities and file an affidavit detailing the efforts you made to locate your spouse. If your spouse does not appear despite the publication, the court will grant you a default divorce. Consult with an experienced divorce lawyer to know the rules in your state.
Does the court consider residency when determining who gets custody?
The courts will use the best interest of the child test to determine child custody. The court will consider many factors including the lifestyle of the spouses, the child’s preference, the past parenting history of each spouse, etc. If the residence of the parent is likely to have an effect on any of these factors, it can affect the court’s decision.
Here’s an example. Paul is a 9 year old whose parents are in the midst of a divorce. Paul and his parents have lived in California even since he was born. Now Paul’s dad Jeremy wants to move to Washington. Paul and Jeremy share a great relationship. Paul does not want Jeremy to go away. Paul has a great set of friends and is a good student getting really great grades. His grandparents live down the street and he enjoys visiting them every now and then. Jeremy and his wife (Paul’s mother) are both seeking his custody. The judge will consider all the above mentioned factors including the fact that Jeremy is moving to Washington when deciding on who gets custody. Jeremy’s mother will most likely get custody because it will help Jeremy continue with his existing lifestyle which he enjoys. If Paul wants to get custody, he must show that the benefits of Paul moving to Washington far outweigh the benefits of staying back in California.
When the parents live apart, the judge may fix a visitation schedule. When fixing the visitation schedule, the judge will take into consideration the time taken by the parent to travel to meet the child and the school schedules. The non – custodial parent will be given chunks of visitation time instead of small weekend visits. The schedule will also determine who pays for the transportation of the child. Generally the court will respect any visitation schedule mutually agreed by the parents if it is beneficial to the child.
Once the court passes an order on custody, any parent who wants to move to another town or state must inform the court and the other parent. The court will not prevent the parent from moving but the parents can apply to the court to modify the order.
The law on residency requirements is complex. Don’t risk it by going along. Hire the services of an experienced divorce lawyer.