Divorce - How to File For Divorce When Your Spouse Lives in a Different State

Introduction

Very rarely does any divorce proceeding conclude without unexpected hurdles and challenges along the way. One of the more common issues faced by couples who divorce is when the spouses live in different states from each other. This can happen quite frequently, especially if the couple is already separated from one another before filing for divorce. It is important to understand the requirements and consequences involved in filing for divorce in such a situation.

Starting the Divorce Process: Filing Requirements

The divorce process begins when either spouse files for divorce in a court of law. Depending on whether the state of filing recognizes no-fault or fault-based divorce, filing may be done even when one spouse does not consent to a divorce.

The first basic requirement in a divorce filing is the residency requirement. The spouse who is filing for divorce must be a resident of the state that the claim is being filed in. This means that if the spouses live in different states, the claim may be filed in either state so long as each individual spouse meets the residency requirement of their particular state. Bear in mind that each state has different requirements as to how long you must live there in order to be considered a resident of the state.

The second requirement for filing is that, regardless of where the claim is filed, the court must have jurisdiction over both parties. The court has jurisdiction over a non-filing spouse who is located out of state if:

?the non-filing spouse has been officially served with divorce papers in person

?the non-filing spouse consents to jurisdiction by:

abiding by court rulings
appearing in a court of that state
signing an affidavit confirming that they have been served

If the spouse who is to be served lives in a different state cannot be located (i.e., cannot be served with papers in person), some courts allow them to be put on notice by publication. This is where one notifies the other spouse that they are filing for divorce by publishing a notification in a newspaper. Finally, a divorce can be filed if the marriage was made in a different country, so long as the filing spouse meets residency requirements.

Advantages/Disadvantages of Filing in a Different States

A couple who is seeking a divorce usually is limited to filing only in the state where each individual spouse resides. However, in the instance that a spouse has multiple options as to which state they should file in, here are some advantages and disadvantages of filing in different locations:

?Lawyer state license requirements- any lawyer who will be hired for a divorce litigation must be licensed to practice in the state where the divorce claim is filed. So, for instance, if the wife lives in Texas, but her husband has filed for divorce where he lives in New York, then the wife must obtain a New York lawyer, or her Texas lawyer who must also be cross-licensed to practice in New York.

?Statute of Limitations (deadlines) - different states have different deadlines for filing divorce papers, so check with the state requirements as to when the claim needs to be filed.

?Fault vs. No-Fault Divorce- Some states require that one spouse show that the other spouse was at fault. No-fault states do not make such requirements and allow spouses to file for divorce simply because of "irreconcilable differences". Also some states require the couple to be separated for a certain amount of time (such as a year) before they can be divorced.

?Distribution of Assets upon Divorce- filing in a different state may, but not always, lead to different consequences in terms of how the property is distributed amongst the spouses upon divorce. This is because some states follow community (shared property) laws while others follow separate property guidelines.

?Child Custody Arrangements- child custody laws also vary from state to state. The choice of state for filing may possibly influence custody arrangements, especially if the child lives in a different state from one of the parents.

Ideally, a couple who is contemplating divorce would want to sit down with each other and discuss the various implications of filing in one state versus another. However, the couple is likely to already be in disagreement (hence, the divorce), so be sure to go over the above points with a lawyer in order to anticipate all the different repercussions of filing in different states.

Other Issues: Concurrent Filings and Travel Expenses

Another issue that might arise is that of concurrent filings; that is, when each spouse has filed a separate claim at the same time or close to the same time. In this regard, the general rule is that the divorce proceedings will be held in the state where suit was filed first, and specifically, for the spouse who was able to serve the notifications first.

This means that if suit has already been filed in one state, but is undergoing delays in the processing, the non-filing spouse really does not have a choice but to wait it out. They will not be able to file an additional suit in their own home state. They would probably be required to ask their lawyer to research what is causing the delay and work with the other court in the other state to expedite the process.

If venue for the proceedings is an anticipated issue, then filing can often become a race between spouses to see who files first. For this reason it is advantageous to contact and retain a lawyer as soon as possible.

Regarding travel expenses, each spouse is responsible only for their own travel expenses if they need to go to a different state to address any divorce claims. Travel can sometimes be avoided altogether if the out-of-state spouse signs an affidavit consenting to the divorce. However, each spouse will probably be required to cover the travel expenses of any attorney who will be traveling to a different state in order to represent them.

Do I need a Lawyer if I Plan to File in a Different State?

As mentioned above, filing in different states can drastically alter the outcome of divorce proceedings. Also, if the other spouse is filing in a different state, the one who files first will prevail in the choice of venue. Thus, you should plan to hire a lawyer at the outset before filing, so they can help you file in a timely and advantageous manner. Some points to go over with your lawyer include:

?Research the laws of each state where you might file for divorce. In particular be sure to cover the following areas of law:

Fault vs. no-fault divorce
Distribution of assets
Child custody implications

?Be sure you have met the residency requirements of the state that you wish to file in

?If the other spouse cannot be located or reached, inquire as to your options regarding notice by publication

Ken LaMance is the Corporate Counsel for LegalMatch.com in South San Francisco, California. LegalMatch (http://www.legalmatch.com/) is fast, free, and confidential. LegalMatch is America's original attorney/client matching service and is not a referral service. When a consumer presents their issue to LegalMatch, our system matches the consumer's case to LegalMatch lawyers in their city or county based on the specifics of the consumer's case, lawyer's location, and area of legal practice. LegalMatch also offers a number of useful resources like an online law library, tips, law blog, and forums on nearly every topic.