How to File for Divorce If Your Spouse Lives in Another State

Monday, February 2, 2015

divorce lawyer KissimmeeThere are as many reasons as there are people, for a person to move to a different state when their marriage is on the rocks, but one thing is the same for all of them: if you and your spouse do live in different states, it can complicate divorce proceedings if you don't know up front how to properly file.
 

In Which State Can You File?

You aren't required to file for divorce in the state that issued your marriage license. If no other circumstances make filing in another state a better idea, you may be able to file in the state in which you currently live. You just have to meet the residency requirements.

The residency requirements will vary from state to state (some have none) and an additional residency requirement may apply to the county in which you live, so you should look into those requirements before wasting time filing papers. For example, in Florida, you must live in the state for at least six months prior to filing the petition. Note that if your spouse is an active-duty member of the military, additional protections may be afforded them to protect them from being divorced without their knowledge.

If you, or your spouse, don't meet the residency requirements for the state in which you'd like to file, you'll either have to wait until one of you does, or else file in a state in which one of you meets the requirements. If you file in a state based on your spouse's residency, be prepared to submit proof of that residency, such as a driver's license, voter registration card or lease agreement.

How to Choose Which State

Because divorce law does vary from state to state, you should choose carefully. If the divorce is uncontested and uncomplicated by things like child support and property division, you can probably file in either state in which one of you resides, though you might make the choice based on how quickly or easily the divorce can go through.

But if you aren't in the ideal situation in which you and your spouse agree on each and every point, you'll need to be extra careful.  In fact, it's not uncommon for things to get a little nasty when you previously had an agreement; therefore, it's probably safest to file in the state most likely to protect your interests, even if you currently have an agreement. Your spouse could get angry with you, realize they were always angry with you, change their mind based on the input of friends and family… the list goes on. This is why consulting a qualified divorce attorney is to your benefit.

How Jurisdiction Affects Your Divorce

Jurisdictional issues can cause complications in a divorce, so it's important you understand how they may affect you before you file.  The court in the state in which you meet residency requirements has the authority to grant you a divorce, but may not have jurisdiction over your spouse and certainly, no authority over property you jointly own in another state.  The Court also may be unable to make child custody decisions. Even if you and your spouse agree to all the material terms of the divorce, it may be faster and less complicated to file in the state in which these decisions can be made by the court.
 

Giving Notice

You can't usually end your marriage without your spouse’s knowledge unless their location is unknown and you prove to the Court you made a diligent effort to find them and give legal notice.  Your spouse must receive a legal means of notification (which may vary by state) in order for the divorce to proceed and you must be able to prove that. Most people are familiar with the concept of "being served," when a qualified agent of the court (a sheriff, process server, etc.) personally delivers your spouse the notification of the filing of the lawsuit.  There are other options for serving notice, including, under limited circumstances, publication in a state-approved newspaper for a certain period of time. 

It's imperative you discuss this with your Kissimmee family law attorney and ensure you follow each and every rule carefully, as failure to do so could invalidate your divorce.

When to File for Divorce

If you want have control over which state governs your divorce, you should start researching it as soon as you know divorce is an option. If you and your spouse both properly file in different states, the state where the petition was filed first usually takes jurisdiction. This doesn't mean you should rush before you have all the facts, but it does mean you should make finding out what you need to know a priority. If you're concerned about which state your divorce is handled in, the quickest way to get all the information you need is to speak with an attorney.  You can find a free consultation, if you are concerned about expenditures and you haven't made a final decision.

Ensuring Your Divorce is Legal in Every State

The U.S. Constitution actually protects your rights from state to state in most cases. In what's commonly known as the Full Faith and Credit Clause, states are required to honor a valid court order from another state. 

That said, you're only protected if you've followed the law properly in the state in which you get a divorce. For example, the court which grants the divorce must have the legal authority (jurisdiction) over the parties, the property and the marriage. As we said, your spouse must be properly notified (served) and you must meet the residency requirements of the state in which you obtained the divorce. If it's discovered that you failed to meet the requirements of the state in which you obtained a divorce, another state may not recognize the divorce. (In fact, in some cases, it may be overturned in the state that originally granted the divorce.)


If jurisdiction or residency requirements may be an issue in your divorce, contact the Kissimmee family law attorneys at Draper Law Offices at 866.767.4711 for a free, no-obligation consultation.

Draper Law Office

2/2/2015

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