It is not uncommon for someone to move out-of-state once they separate from a spouse. However, divorce laws can vary dramatically from state-to-state. It is important to understand how location may impact your right to marital property, child custody, and support payments. 

How Do I File for Divorce when My Spouse Lives out of State?

Residency Requirements
Most states have residency requirements before you can file for divorce. (Alaska, South Dakota, and Washington do not have these requirements.) Depending on the state, residency requirements range from 60 days to a year. Unless you meet these requirements, your divorce complaint will be rejected.

Filing for Divorce
Once you meet your state’s residency requirements, 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. If you need help understanding your state’s filing process, contact a lawyer.

Serving an Out-of-State Spouse with 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. Again, a family law attorney can help you understand your state’s service procedure.

What Are the Advantages and Disadvantages of Filing in Different States?

Every state has its own laws concerning divorce, child custody, child support, and alimony. If you and your spouse live in different states, it is important to understand these separate state laws. Depending on your situation, one state’s law may be more advantageous than the other. Here are some of the issues to consider:

No-Fault vs. Fault Divorce
All states permit some form of no-fault divorce. In a no-fault divorce, a couple typically separates due to “irreconcilable differences.” In these cases, you do not have show that your spouse’s misconduct caused the divorce.

However, some states still allow a spouse to allege fault in a divorce. Reasons for a fault divorce may include adultery, abandonment, or incarceration. In these states, your spouse’s misconduct may result higher alimony payments or a larger share of marital property.

Property Distribution
States have varying rules on the distribution of marital property. Generally, states can be categorized as either a community property or equitable distribution state.

  • Community property: Marital property is divided evenly. A relatively small number of states apply community property rules (including Arizona, California, Texas, and Washington).
  • Equitable distribution: Marital property is divided in a way that is fair and appropriate. Typically, property is not split evenly. Instead, the court will weigh a series of factors (including financial need and each spouse’s earning capacity) when dividing marital property.

Again, a spouse’s misconduct can also impact property distribution in states that permit fault divorces. 

Child Custody and Visitation Rights
While every state awards custody and visitation based on a child’s best interests, they all use a slightly different analysis. 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 right to parenting time.

Child Support and Alimony
Every state applies its own guidelines and factors when calculating child support and alimony payments. For example, some states have very specific calculators that are used. Other states calculate child support and alimony on a case-by-case basis (and do not have a state-mandated calculator). Make sure you understand how your state’s system works before you file for divorce.

What If Both Spouses Have Filed at About the Same Time in Different States?

Sometimes, both spouses file for divorce at about the same time. Called “concurrent filing,” this can complicate a divorce. However, the general rule is that whichever petition is filed first (and is served first) will proceed to court. 

Do I Need a Lawyer for an Out of State Divorce?

Unless your divorce is very simple and uncontested, it is in your best interest to hire a family law attorney. Most divorces, especially out of state divorces, involve a detailed legal and financial analysis. And, if you have children, you must also address the complexities of child custody and support payments. A lawyer can ensure that your case is properly handled and your rights are fully protected.