Divorce Residency FAQ’s
Do I have to live somewhere to obtain a divorce there?
What is the difference between residence and domicile?
Can a spouse move to another state or country to file for divorce there?
What state has jurisdiction over child custody?
What state has jurisdiction over retirement plans and military pensions?
If my spouse moves out of state, can I still file for divorce in our marital state?
What if I can’t find my spouse or don’t know his residency?
Does divorce residency affect child custody?
Do I have to live in a state to obtain a divorce there?
Yes. All states, except Alaska, South Dakota, and Washington, require parties filing for divorce, to be a resident of that state for a period of time before you may file. The necessary length of residence varies, but usually, it is at least six months. Courts require those filing papers to swear under penalty of perjury that they have in fact been residents of that state for the required length of time.
Whichever court issues the divorce decree also has issues over the supplement issues, like property division, child custody and visitation, child and spousal support, etc., and any amendments to orders of those issues. This makes your filing in your state of residence even more important so you can avoid the stress and expense of traveling to a foreign state for every court hearing or filing. So, if you think your spouse might file in another state, try and file first, if you can, in your own state, to avoid having your entire case being handled in a foreign state.
The chart below shows which states have residence requirements and how long those requirements are. So, as long as you or the other party meet those residence durations, you should be able to file your divorce in that state.
Alabama 6 Months or 180 Days
Alaska No Requirement
Arizona 90 Days
Arkansas 60 Days
California 6 Months or 180 Days
Colorado 90 Days
Connecticut 12 Months or 1 Year
Delaware 6 Months or 180 Days
District of Columbia 6 Months or 180 Days
Florida 6 Months
Georgia 6 Months
Hawaii 6 Months
Idaho 6 Weeks
Illinois 90 Days
Indiana 6 Months
Iowa 12 Months
Kansas 60 Days
Kentucky 6 Months
Louisiana 6 Months
Maine 6 Months
Maryland 12 Months
Massachusetts 12 Months
Michigan 6 Months
Minnesota 6 Months
Mississippi 6 Months
Missouri 90 Days
Montana 90 Days
Nebraska 12 Months
Nevada 6 Weeks
New Hampshire 12 Months
New Jersey 12 Months
New Mexico 6 Months
New York 12 Months
North Carolina 6 Months
North Dakota 6 Months
Ohio 6 Months
Oklahoma 6 Months
Oregon 6 Months
Pennsylvania 6 Months
Rhode Island 12 Months
South Carolina 12 Months
South Dakota No Requirement
Tennessee 6 Months
Texas 6 Months
Utah 90 Days
Vermont 6 Months
Virginia 6 Months
Washington No Requirement
West Virginia 12 Months
Wisconsin 6 months or
Wyoming 60 Days
What is the difference between residence and domicile?
For residence and domicile determination, the party’s presence in the state rules. Some states call this “residence” and some call this “domicile.” Finding out which term your state uses is important in determining what is necessary. If your state uses “domicile,” then, the party must have a fixed, permanent, brick and mortar home in that state, and have the intention of staying. However, if your state uses the term “residence,” the party filing must simply be present in the state for the required period of time mandated by the statute in the chart above. Essentially, this means a person can have several residence but only one true domicile. For instance, Dina is a professional golfer and travels a lot for work. She stays in Arizona and Florida a lot, where she can be found golfing at any short duration of time. However, Dina has a fixed and permanent house in Indiana, where her family lives, her bills are sent, and most of her belongings are fixed. In this example, Dina has domicile in Indiana, but has residence in Florida and Arizona.
Domicile is a more difficult standard, because the party filing must establish that the his/her/their single, true, brick and mortar home is located in that state. Courts tend to consider the following factors to determine someone’s domicile:
· Where the rest of the person’s immediate family members live
· Where the person is registered to vote
· Where the person’s central place of employment is
· Where the person’s car is registered
· Which state is on his/her/their driver’s license
· Where the person’s children go to school
· Where the person banks
· If there is more than one residence, courts consider the order in which they were acquired, how they were paid for, and how they are used (permanent verses vacation homes).
Can a person move to another state or country to file for divorce there?
Yes. As long as the filing person can prove residence or domicile, depending on what that state’s statute requires, in that new state or country. Then, all of the other states should recognize this divorce. The non-resident spouse can consent to the jurisdiction in this other state by appearing at court dates, signing affidavits of service, acknowledging receipt of filed legal documents, filing legal documents, and generally following that court’s orders (such as paying child support). This is fairly easy and straightforward in an uncontested divorce.
Subsequent issues to divorce, such as child custody and visitation, support, and property division may likely be heard in the same state as the divorce, however, sometimes this can be tricky. For example, if the children reside in a different state for the majority of the time, a court may determine that that state is in a better position to make orders about the best interest of the children—a standard most states follow these days.
Be sure to consult a divorce attorney if you receive documents from foreign state or country. The laws about which state or foreign court governs can be tricky. There are many factors to consider, such as which country is involved, where the parties lived and for how long, and whether there are children involved. A divorce attorney can help you sort through these tricky divorce residency issues.
What state has jurisdiction over child custody?
The home state of the child has custody jurisdiction, unless one state asserts continuing jurisdiction. The state that ordered the original custody decree can assert jurisdiction in any proceedings regarding modifying that order, so long as one of the parties that has visitation still has the necessary residence or domicile in that state. Each state is different, however. For example, Alaska follows the residence of the child as having the jurisdiction over custody, visitation, and child support issues. So, it is important you consult an attorney licensed in that state, to best advise you on what to do.
What state has jurisdiction over retirement plans and military pensions?
The state the original member (rather than the spouse of the member) has residence or domicile, whichever is required. Typically, this means that the residence or domicile must be proven. If the company that issues the plan itself has enough contacts with another state, courts can rule that that other state has jurisdiction.
A state can only establish jurisdiction over a military pension plan based on the military member’s domicile, residence, or consent, and NOT based on the member’s military assignment. For example, Elly was born, grew up, and lived in California. She joined the military and was sent to Florida for basic training. While living in Florida, she decides to file for divorce. Indiana, rather than Florida, is the likely state to have jurisdiction over her military pension. All states differ on their treatment of military pensions, so the state you choose can be critical. So, be sure to research your options and aim for the state that will best serve your needs. A divorce attorney can help you do this, and most of them give free consultations.
If my spouse moves out of state, can I still file for divorce in our marital state?
Yes. The current residence or domicile of either party is what rules. So, as long as you fulfill the divorce residency requirements, you may file in that state. Some spouses choose to have their spouses sign a notice of acknowledgement of receipt or similar divorce documents before they move to make it easier on themselves. If your spouse moved to a different country, try and get him/her/them to sign this notice and acknowledgement of receipt, their response to the divorce, and any other pleadings he/she/they will need to sign as part of the divorce proceedings. This will make service issues much easier on you. out of the country. However, if you are unable to get your spouse to sign these, and you can prove he/she/they knew about them and decided to move and ignore the proceedings, anyway, you may be able to get a default judgment against them, and the court will likely rule in your favor on all issues, as long as your requests are fair and reasonable.
What if I can’t find my spouse or don’t know my spouse’s residency?
File a missing spouse divorce. You don’t have to let this issue stop you from getting divorced. If you can show the court your diligent efforts to locate the other spouse, the court will likely grant your missing person divorce. The court may also give you permission to serve your spouse by publication or posting (if you can prove you cannot afford publishing costs). To do this, you call the legal listings department of the newspaper of the city you believe your spouse to be residing in, and that newspaper will publish the notice documents for a required period of time, (often four weeks). The specific steps in doing this are to first file your petition for divorce, then file a request for service of publication, showing the court your diligent but failed efforts to locate your spouse, get your order granting your request for service of publication, run the ad, and make sure the newspaper filed a proof of publication with the court. Like most things, the rules and laws about this vary state to state, so be sure to consult a divorce attorney before you start.
Does divorce residency affect child custody?
Yes, but it also depends. Most courts apply the best interest of the child standard. So, courts might consider the child’s present lifestyle, impact of change on the child, impact of separation from one of the parents and/or from the child’s home state, ability of the parents to encourage the relationship between the child and the other parent, and if old enough, the child’s preference. The residence of the parents will impact these things, so the court is likely to take that into consideration. Most courts will not allow a parent to move away with a child, unless that parent has sole physical custody, a domestic violence restraining order against the other, and/or unless that parent can prove the move to be in the child’s best interest. When I draft arguments about move-away requests, I compare schools of the new home with the current school, culture, costs of living, proximity to other relatives especially siblings, and the moving parent’s effectiveness at encouraging contact between the child and other parent.
For example, Kranjis MacBasketball is a happy eight-year old. Kranjis has lived with his parents in California his whole life. Now, his parents are getting divorced and one of his moms wants to move to Nevada. Kranjis has a great relationship with his California mom, has lots of friends, is on many sports teams and clubs at school, is very close to his Lola who lives in California, and really doesn’t want to move. His Nevada mom has not always been the best at coparenting with his California mom. She often is late dropping him off for visitation, and sometimes “forgets” to drop him off at all, which has really cut into his California mom’s timeshare with Kranjis. Kranjis’s Nevada mom wants to open a casino in Nevada, where the cost of living is much lower, and where she has lots of relatives. The schools there have much higher ratings, and the high school has won the state basketball championship every year for five years straight. Kranjis is so good at basketball and loves it so much, it is literally in his name. Both parents have a great claim and great arguments in this move-away action, and I believe the Nevada mom is going to have a tough time getting the court to award the move-away. The moms go to court and the court rules that Kranjis may stay with his California mom, but will spend six weeks in the summer, three consecutive weeks at a time, odd years Christmas break, every fall break, and every Spring Break in Nevada. Kranjis is so happy he doesn’t have to move, and the family goes on, following the court’s orders. When Kranjis visits Nevada, he absolutely falls in love with it, and the town’s basketball community. He talks to his moms about this, and decides he wants to go to high school in Nevada. His Nevada mom petitions the California courts, using this new information. The court orders Kranjis to move to Nevada, but spend summers, all school breaks and even years for Christmas Break in California. The family follows these orders, and Kranjis ends up being a star forward on the basketball team at his high school, and wins a scholarship to play ball for Indiana University. He grows up to be a happy, healthy man with a rich cultural history, thanks to his two moms.
In cases in which the parties live a great distance apart, judges usually set visitation schedules that tke into account travel time, inconvenience, school schedules, and exra-curricular activities. The courts often give the noncustodial parent chunks of visitation over school vacations, rather than small weekend visits. Typically, the courts order the parents split the costs of traveling for these visitations, unless one parent can show that this would be a great hardship.
Courts are not allowed to restrict an adult’s desires to travel or move to another state, as the US constitution holds this as a right. However, the court may restrict the minor’s movements in a custody matter. So be sure to check with your friendly neighborhood divorce attorney, if you are considering moving and you have a child with another living parent.
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