Filing for an Out of State Divorce – FAQs

The road to divorce is sometimes a long process; if changes in your life force you to move to a new state before your divorce is finalized, the process can take even longer. You may run into a few problems if you or your spouse file for an out of state divorce.

There are several common questions you might need to consider before you move forward with your out of state divorce.

Do I Need to Establish Residency Before Getting an out of state divorce?

In most of the United States, filing for an out of state divorce is not possible; most states require you to establish residency before you can seek a divorce. The only states that do not require residency are Washington, South Dakota and Alaska. Each state has its own rules for residency, but living in the state for at least six months is a common standard. Some states, such as Idaho, only require six weeks to establish residency.

What If My Spouse Moves to Another State?

Your spouse can begin filing for divorce in a different state after he or she has established residency there. However, depending on the laws of that state, the courts may not have legal authority over other matters related to your divorce, including child custody. To make the process easier on yourself, it’s best to start the divorce proceedings before your spouse moves.

What are the Differences between a Residence and a Domicile?

Some states have laws requiring a spouse to have a true domicile in that state. This generally refers to a fixed address that the individual intends to live in for some time. A residence, on the other hand, is not always your primary home. For example, an individual may own a single-family home in Indiana as a domicile while owning two condos in other states; each condo would be considered a residence. An individual can have multiple residences, but only one residence can be considered a domicile.

What Happens if We Both File for Divorce in Two Different States?

If both you and your spouse have established residency in two different states, the state where the first filing occurred becomes the only state that can rule on that divorce. Some steps in the divorce process may require you to appear in court in person, so it’s wise to file first in your state.

How Does Residency Affect Child Custody and Child Support?

If you and your spouse have children, the home state of the children will determine which court has jurisdiction. The judge will consider a number of factors related to the current location of both spouses when deciding custody and visitation rights. For example, children who are enrolled in school in their home state will likely continue to live in that state.

What Can I Do if I Don’t Know Where My Spouse Is?

If you are uncertain of your spouse’s location, you can still get a divorce. If you can prove to the court that you attempted to locate your spouse, the divorce case can still proceed.

If any of these situations apply to you, contact Attorney Cheshire for a consultation. Just fill out the form on the website or call him at (561) 677-8090.

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