Filing for Divorce in Different States
Where should I file if my spouse and I live in different states?
Frequently when a married couple separates it will result in the spouses living in different states. Filing for divorce in this situation can present many challenges for the couple, since every state has different divorce laws. In general, the most important requirements for filing for a divorce in different states are:
- Residency requirement: The spouse filing for divorce must be a resident of the state where they are filing in. This usually requires the person to live in the state for a certain amount of time. Each state has different residency requirements
- Jurisdiction: The court must have jurisdiction over the parties. This means that:
- The non-filing spouse has been officially served in person with divorce papers and
- The non-filing spouse has consented to jurisdiction by:
- Appearing in that state’s court
- Signing an affidavit confirming receipt of the divorce papers or
- Following court rulings
Thus, if the spouses live in different states, each one may file in their individual state as long as they meet requirements of residency and jurisdiction. The choice of state is important, because it can often determine such issues as child custody rights and distribution of marital property.
What are the advantages and disadvantages of filing in different states?
A couple seeking divorce is typically limited to the filing in the states where each one resides. Filing in a particular state will create advantages and disadvantages for each party. The choice of state will affect the following issues:
- Child Custody and Visitation Rights: Each state has different laws governing child custody, support, and visitation rights. So, filing in a different states could affect these matters
- No-Fault vs. Fault Divorce: All states currently have some form of no-fault divorce available. However, if the couple is filing based on fault, this could vary by jurisdiction
- Distribution of marital property: Marital property is classified according to whether the state employs community property or equitable distribution laws
- Filing Deadlines (Statute of Limitations): A statute of limitation is the time period during which the spouse is allowed to file for divorce.
- Attorney licensing provisions: Lawyers who are hired for divorce hearings must be licensed for practice in the state of filing. Attorneys can also acquire cross-licenses if they are from out of state
Another important consideration regarding out-of-state divorces is travel expenses. Many persons cannot afford to travel from state to state for divorce hearings. These can be avoided using signed affidavits which will be sent to the corresponding court.
What if both spouses have filed at about the same time in different states?
If both spouses have filed for divorce at about the same time, this is known as “concurrent filing”. The general rule in this situation is that the divorce hearing will proceed in the state where the papers were filed first. Particularly, the divorce proceedings will be heard in favor of the spouse who provides notification to the other spouse first.
Thus, if a divorce suit has already been filed in one state, but is being delayed for whatever reason, then the other spouse has no option but to wait out the hearings. A possible solution is to contact a lawyer in order to investigate whether the process can be expedited.
For these reasons, filing for divorce can often result in a race to see which spouse files first. Therefore it is important to contact a divorce attorney early on in order to avoid being placed in an unfavorable situation.
Do I need a lawyer for an out of state divorce?
The process of divorce is a serious matter and should not be initiated without the advice of a family law attorney. You should check with an attorney to determine your state’s specific residency requirements. A lawyer will also help you to present your terms regarding important issues like child custody and property distributions.
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Last Modified: 03-21-2013 02:52 PM PDT