Often, when couples decide to divorce, certain circumstances arise where one spouse must move out of the state in which they previously lived. Before a divorce proceeding is initialized, each spouse should consider how their move could affect their ability to dissolve their marriage in a particular state court.
Choosing where to file
Spouses who live in different states will have to consider which court to bring their divorce proceeding to. The court's choice will have a direct effect on the outcome of the proceedings because of that state court’s rules regarding property division. For example, one state may divide property equally by ordering an exact 50/50 split. In contrast, another state may divide property equitably, looking at a totality of the circumstances in deciding how to distribute property fairly rather than equally. Because of the potential for differing outcomes depending on state law, spouses should pay careful attention to the state in which they finalize their divorce.
Jurisdiction – What is it?
To make divorce-related decisions, the court must have jurisdiction. When a court has jurisdiction, it has a legal authority to make a determination on the marriage dissolution because at least one spouse is in some way connected to the state in which the court sits. If a court does not have jurisdiction, it cannot take over the divorce process.
It is possible for more than one state court to have jurisdiction over the parties to a divorce. In this situation, the first state court in which a divorce proceeding is initiated will be the court that retains jurisdiction.
Jurisdiction Over Custody and Property Division Matters
It should be noted that just because a state court has jurisdiction over the spouses does not mean it can make a decision on all aspects of the divorce. In order to make decisions regarding property division and child custody matters, the court must have legal authority over them.
A court will generally only have jurisdiction over the property that is located within the state. To have jurisdiction over child custody related issues, the court should sit in the child’s home state. This is usually the state where kids are physically present and intend to stay permanently.
State Residency Requirements
The state in which you file for divorce should not necessarily be the same state that issued your marriage license. Either you or your spouse must meet the state’s residency requirements for courts in the state to have the legal authority to review your marriage dissolution case. Residency requirements are state-specific and vary throughout the country but usually require that the filing spouse (or one of the spouses) have lived in the state for several months, typically six.
The filing spouse should be prepared to show proof that they have met the residency requirements by presenting the judge with:
- Copy of a lease
- Driver’s license
- Bank statement with address
- Voter registration records
Residency in the state should be continuous. In other words, a spouse should not move in and out of the state during the period required to show residency. It may be necessary for the spouse to wait until they meet the residency requirement to file for a divorce in that state.
County Residency Requirements
Some states will also require that at least one of the spouses meets the residency requirements of the county in which the court sits. This requirement is similar to the state one in that one spouse must live in the county continuously for a set amount of time, usually six months. When two spouses live in the same state but different counties, the divorce proceedings can generally be brought in either county.
Serving Your Spouse with Notice of Divorce Proceedings
When your spouse lives in a different state, you’ll need to be sure they are given proper notice of the pending proceedings. In order to notify your soon-to-be-ex of the divorce, you must “serve them with process.” This means that they should be given legal documents (the copies of the ones you have filed with the court along with a few other ones) necessary to alert them of the fact that you have initiated a dissolution of marriage. This can be done in a number of ways.
1. Personal Service
The most effective way is to serve your spouse with the appropriate legal papers personally. In this case, the paperwork is handed to them in person, so there is no question as to whether they have received the documents or not.
The filing spouse may not be the one to do it though. For the service of process to be proper, i.e., legally acceptable, a friend or family member may hand-deliver the documents to your spouse. Alternatively, you may hire a process server or ask a sheriff to effectuate service for an additional fee.
A process server is a professional who will be responsible for handing paperwork to your spouse. Hiring one may come at a cost, but it is often an efficient and effective way to ensure that the other party receives the necessary documents.
2. Service by Mail
A spouse may also be served by mail. In order to make it happen, the filing spouse should send the appropriate legal documents by registered or certified mail. The filing party should include a proof of receipt, which should be signed and returned by the receiving party. Only upon the return of the proof of receipt will service be considered complete.
3. Service by Publication in a Newspaper or Social Media
This option is usually used as a last resort when one spouse cannot be found. After proving to the court that it is impossible to locate a spouse and getting court permission, the filing party will have to publish the information about the initiated divorce in a newspaper for a designated period of time. Sometimes, when the judge allows, publishing the notice on social media may also be an option.
When both spouses wish to move quickly and save on litigation costs, the non-filing spouse may sign a Waiver of Service. The Waiver of Service is a legal document signed by the respondent, usually in the presence of a notary, that states that they waive their right to formal service of process. After the waiver is signed, it is filed with the court.
You should take caution in signing such waivers. While they may be useful in moving the divorce proceedings along swiftly, some also include terms waiving additional rights to notice of court dates or other decisions made by the judge on your behalf. If you do not fully understand your Waiver of Service, it is best to consult a lawyer before signing.
Before filing for a divorce, the filing spouse must consider whether the court will have jurisdiction. Without jurisdiction, the court will not be able to render a decision on the case. It is crucial to look closely at the residency requirements of the state and county in which you wish to file and make sure your spouse is properly served with process.