It is not uncommon for someone to move to a different state once they separate from their spouse. However, this can present potential obstacles when it comes to formally filing for divorce and reaching a final resolution.

Since divorce laws can vary dramatically between the states, it is important to understand how residing in different may impact your right to marital property, child custody, alimony payments and child support payments.

What is the Procedure for Filing for Divorce When a Spouse Resides in a Different State?

There are several important steps and things to consider when filing for divorce. First, you should check your state’s residency requirements. Depending on the state, residency requirements can range from 60 days to a year. Unless you meet these requirements, your divorce complaint can be rejected. This can be problematic if someone wishes to file for divorce shortly after that move to a new state.

Sometimes, both spouses file for divorce at about the same time. This is referred to as “concurrent filing.” While this may vary between the states, the general rule is that whichever petition is filed and served first will proceed to court. Thus, if you wish to file in a state that is more favorable to you in the divorce, you should file as soon as possible to avoid this issue.

Once you meet your state’s residency requirements, then you can file for divorce. Although every state has its own procedures, this typically involves filing a complaint or petition for divorce and other paperwork with the court. A local divorce lawyer can assist you with filing divorce papers.

The final step in a divorce filing is serving the papers on your spouse. Typically, service involves either mailing the paperwork to your spouse or having a process server (either a sheriff or private individual) deliver the paperwork. This step is generally fairly easy unless your spouse tries to avoid service or you are unaware of where they reside.

What are the Advantages and Disadvantages of Filing for Divorce in Different States?

Depending on your situation, one state’s law may be more advantageous over another state’s laws. Some typical issues to consider before determining which state is better for you to file in are:

  • Does the State Allow for a No-Fault Divorce?
    • All states permit some form of no-fault divorce, which are generally much smoother cases. In a no-fault divorce, a couple can get a divorce by citing “irreconcilable differences” in the marriage. In these cases, you do not have show that your spouse’s misconduct caused the divorce.
    • Some states still allow a spouse to allege that the divorce resulted from fault of the other spouse. Reasons for a fault divorce may include adultery, abandonment, abuse and incarceration. In these cases, your spouse’s misconduct may cause the court to award you higher alimony payments or a larger share of marital property.
  • How Does the State Handle Distribution of Property?
    • Your state laws will determine whether they follow community property distribution or equitable distribution of marital property, which refers to all property obtained after the marriage. Thus, a piece of property that one spouse obtained prior to the marriage would not be in dispute.
      • For community property states, the marital property is divided equally. A relatively small number of states apply community property rules.
      • For equitable distribution states, the marital property is divided in a way that is fair and appropriate. Typically, the property is not split evenly. Instead, the court will weigh a series of factors (including financial need and each spouse’s earning capacity) when determining what marital property each spouse is entitled to keep.
    • Keep in mind that in a fault state, a spouse’s misconduct can impact property distribution. The misconduct can lead to the spouse receiving less of the marital property.
  • How Does the State Handle Child Custody and Visitation?
      • Every state will look at what is in a child’s best interests when determining how the parents receive custody and/or visitation with the children. However, the analysis may vary between the states. For example, some states favor sole physical custody, while others tend to give parents shared custody of a child.
      • If you have a child, your choice of state law may dramatically impact your custody rights. If you want to stay involved in your children’s life, a shared custody state or one that favors visitation would be a more ideal place to file for divorce.
  • How Does the State Handle Child Support and Alimony?
    • Every state applies its own guidelines and factors when calculating child support payments and alimony payments. For example, some states have a very specific formula that they strictly follow.
    • Other states calculate child support and alimony on a case-by-case basis and do not have a state mandated calculator. There is more leniency for child support and alimony awards in these states.

Do I Need to Hire an Attorney When Filing for Divorce from a Spouse Living in a Different State?

Unless you use a mediator or your divorce is very simple and uncontested, it is in your best interest to hire a local family law attorney, especially if you reside in a different state from your spouse.

A lawyer can advise you about the best state to file for divorce and help you fulfill the procedural requirements. A lawyer can also help reach a fair resolution and represent your interests in court.