Do You Have to File for Divorce in the State You Were Married in?

Key Takeaways

• You can file for divorce in a different state than where you were married if the new state has jurisdiction over your divorce case.
• Each state has specific residency requirements that you must meet to qualify for initiating a divorce.
• Because each state has different laws, there are benefits and drawbacks to filing in each state, which you should evaluate before you file.
• Divorce procedures vary by state, from divorce forms to service methods and waiting periods.
• Determination of child custody and support in cases involving minor children differs from state to state.

Can You Get Divorced in a Different State Than You Were Married in?

Yes, you can get divorced in a different state, even though you were married elsewhere. You can file for divorce in states where you or your spouse fulfill the residency requirements, and the court has jurisdiction over your case.

Things to Know When Getting a Divorce in Another State

Seeking a divorce in a state other than where you got a marriage license can create some challenges. Several factors, such as jurisdiction, residency requirements, and differences in laws and legal procedures, are critical to be aware of.

Jurisdiction

Jurisdiction for divorce purposes means the state court’s authority to make decisions concerning your divorce. It is determined by the person’s relationship with the state, mainly the state’s residency period for divorce.

The state where the couples were married has jurisdiction over their marriage and divorce as long as the couple continues to live there. But jurisdiction may change when the spouses leave the state and establish a domicile in another area.

The Constitution’s Full Faith and Credit Clause establishes that all states must honor and recognize another state’s court decisions, such as marriage. Consequently, spouses don’t have to initiate a divorce in the same place they were married and can file for divorce in another state, as long as they meet that state’s requirements.

The court you file in must have jurisdiction over the property and children in your divorce. While the state does not have direct jurisdiction over assets in another state, it does have jurisdiction over the spouses and can direct them on how to handle the property.

If there are children living with the other spouse in a different state, the state where the divorce is filed may not have jurisdiction. Decisions about child custody and support may be entered only in a state where the child has lived six months before filing for a custody order.

Divorce Residency Requirements

A residency requirement for divorce is a period of time that a person has to live within the same state’s limits. Sometimes, you also must reside in the same county for another, typically shorter, period to file for divorce in the local court.

These requirements were initially established to stop people from picking a state where they don’t live just to use its laws that could benefit them by giving better divorce outcomes.

All 50 states have their own specific residency requirements. For instance, if you want to initiate a divorce in Texas, you or your spouse must live six months in this state and at least three months in the county you wish to file your divorce papers.

You can select a state for your divorce where you fulfill residency criteria, namely where you currently live or your spouse resides.

How Do You Prove Residency for Divorce?

Sometimes, a state court might request verification that you fulfill the residency requirement before proceeding with your divorce. Commonly accepted evidence includes a driver’s license, a voter registration card, or a state ID card.

Other documents that might help establish residency are property and income tax forms, utility bills, rent payment records, etc.

You should always check with your state court clerk and inquire what they will accept as proof of residence. In Nevada, for instance, you must present a sworn statement from a third party who confirms that you comply with the residency rules.

Which States Have No Residency Requirements for Divorce?

Alaska requires you to intend to stay as a resident when you file for divorce but does not require any proof of intent. South Dakota does not require residency, however, once you file, you must be a resident “in good faith” and you must stay as a resident until the divorce is final.

Washington state only requires that you reside in the state on the date you file and there is no requirement that you have resided there for any time prior. do not have any residency requirements at all.

In these states, you can file your divorce papers shortly after relocating or while being stationed there as a member of the armed forces.

Choice of Law and Strategic Considerations

If you have options of where to file for divorce, it’s wise to become familiar with the divorce laws of a specific state before initiating your divorce there. In particular, the main factors you should consider are property laws, alimony, and child custody and support.

The state where you file for divorce may significantly influence the final judgment. For instance, you might opt for a state with more favorable laws about property division or one where you won’t have to pay spousal support.

If you and your spouse sign a marital settlement agreement, such as in an uncontested divorce, the state you choose for filing doesn’t matter since you decide on how your property is divided yourselves.

But if you’re anticipating a contested divorce, you should carefully consider the jurisdiction’s laws where you intend to file your case.

Essentially, there are two types of property law: community and equitable.

• In a community property state, all marital assets and debts acquired during the marriage are split equally between the spouses.
• In an equitable distribution state, marital property is divided following equitable (fair) rules. For instance, the courts consider each spouse’s contribution to the property accumulation and who acquired which debt.

How do you choose which state is best for your divorce? The right decision depends on your circumstances and the issues you want to resolve.

Suppose your spouse lives in a community property state while you’re from an equitable distribution state. Should you decide to get a divorce in your spouse’s state, a fair division of all your real estate, money savings, vehicles, and other assets and debts will result in a 50/50 split.

If this result suits you best, you can initiate a divorce in this state.

Otherwise, you can file in the equitable distribution property state, where the division might be 40/60 or 30/70, depending on what the court finds fair and just.

Also, if your income is significantly lower than your spouse’s, you might benefit more from starting a divorce in a state with more generous alimony laws. However, judges weigh several relevant factors, including the length of marriage, age of spouses, employment prospects, etc.

So, it’s crucial to consider all circumstances of your divorce before deciding where to file.

Divorce Process

Different states have different rules regarding divorce proceedings and legal papers. The major aspects you should consider before filing for an out-of-state divorce are the following:

• The local rules for filing the paperwork and fees. Each state and county might have various requirements for filing the initial divorce papers in person or electronically, what exactly you need to file, and how much you must pay to start a divorce case.
• Service of process rules. When you start a divorce in a particular state, you must provide notice to your spouse using court-approved methods. Sending this notification to the out-of-state spouse might require hiring a sheriff or a process server in another state and paying higher fees.
  
  Some states allow a third-party neutral person to deliver divorce papers to the non-filing spouse (the respondent). In contrast, in other states, the responsibility is limited to a licensed process server or a sheriff.
  
  In many states, a petitioner can also send a notice via certified mail. The divorce may be considered invalid if the respondent isn’t properly served.
• Cooling-off (waiting) period. This is the amount of time between filing the divorce and the date when the final divorce decree comes into effect. In some states, spouses must wait 10 days up to six months to be officially divorced, while others don’t have a waiting period.
  
  Also, some jurisdictions, like Idaho, impose up to 90 days of waiting for spouses with minor children and 21 days for couples without kids.

Divorce With Kids

If you have minor children, child custody and child support are two issues in your divorce. The court where you file your divorce must have jurisdiction to order monthly child support and custody arrangements.

If a minor child lives in another state than the one handling the case, the court may lack jurisdiction over child custody decisions. In that situation, custody must be decided in the child’s home state, so you would have to have a separate proceeding in that state. Child support is heard in the state that has personal jurisdiction over the paying parent.

Typically, a child’s “home state,” where they’ve resided for six months before legal action, holds the authority to decide on child custody. Other states recognize and respect these orders under the principle of full faith and credit.

If there is an existing order of custody or support, the state that initially ordered it holds the jurisdiction over that aspect of the case and should be addressed for any modifications of the existing child-related orders.

When you file for divorce with kids in another state, you should research the following matters so that you can choose the state with the requirements that are most favorable to your position:

• Child support calculation process. Each state has its own set of rules (guidelines) for calculating child support. The formulas may be based on the Income Shares Model (California, Florida, etc.), the Percentage of Income Model (Texas, Nevada, etc.), and the Melson Formula (Delaware, Hawaii, and Montana).
• The parenting class requirement. Some states have laws that require spouses with minor children to attend parenting education programs before they can get divorced.
• More extensive divorce documentation. Divorcing with minor children involves more paperwork compared to child-free divorces. They include forms such as the Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act, temporary child custody applications, and joint parenting plans.

Bottom Line

Filing for divorce in a state other than where you were married may present benefits and complications. Since each state has its laws and legal procedures, it’s crucial to understand all the local court rules and jurisdictional constraints that may affect the divorce outcome.

Alimony and property division rules vary, so starting a divorce in another state needs careful planning and a strategic approach to guarantee a predictable and successful result.

If you have children, it is important to determine their home state, since that is where custody and child support issues must be heard.