Filing for divorce or being served with divorce papers can be complicated, emotional, and stressful. The complications can be exacerbated if there are questions about residency and where to file the divorce petition. To be certain, it is best to work with an attorney licensed in your state to help you determine the best place to file your divorce petition.
1. What is residency, anyway?
Divorces are governed by state law. Most states have laws that require a person to have lived there for a certain period of time before asking for a divorce. These requirements are commonly known as “residency” requirements.
Some states require only a period of “residency” while others require that the state be the person’s “domicile.” When residency is required, that generally means that the person must only be present in that state. For example, attending college in a state would likely meet most a requirement for residency even if the student intended to return to an out-of-state home after finishing college.
Other states require a period of “domicile” before they will entertain divorce proceedings. This typically means that the person must live in the state permanently, intending to return back to that state after any absence. In the example above, the student would likely not meet a domicile requirement in the state where he or she was attending college. That’s because he or she intends to return back to his or her home state after graduation.
In addition, most U.S. jurisdictions require you to have lived in an area for a minimum period of time before you can ask the court there to grant you a divorce. In most cases, these time periods range from 90 days to one year.
2. Why do residency and domicile matter in a divorce?
Generally speaking, you must file for divorce in the state where you live. However, this can get murky if you have recently moved or if you and your spouse live in two different counties, two different states, or two different countries.
Like most matters relating to divorces, residency is governed by the laws of the state where you live. The only way to be sure you meet residency requirements is to consult with an attorney licensed in your state. However, the discussion below will give you an idea of common residency requirements.
3. What if my spouse lives in a different county?
If you and your spouse live in different counties in the same state, the divorce petition can generally be filed in either county. Different counties may have different local rules or be known to be more favorable to one party or another. If you are filing for divorce, you will want to examine these factors to determine where to best file your divorce petition.
To ensure that you are best represented, it is advisable to consult with a local attorney who specializes in family law. An attorney can help you determine the best location for you to file for divorce.
4. What if my spouse lives in a different state?
The petitioner who is filing for a divorce usually files the divorce petition in the county and state where he or she lives. The petitioner will still be required to have the other spouse (the “respondent”) served in the respondent’s state of residence. The respondent will then be required to follow the local and state law and rules of the court where the divorce is filed.
If the respondent finds that it is a hardship to be fairly represented in a different state, he or she may file for a transfer of venue to a court local to the respondent. In other words, the respondent can ask that the divorce proceedings be moved to the respondent’s location. However, these requests are usually not granted.
If the respondent lives in a different state, he or she does not necessarily have to appear at all of the divorce proceedings in person. It can become quite costly to travel to a different state for each court hearing. In many cases, a respondent can opt to have an attorney be present in person on his or her behalf.
5. What if my spouse lives in a different country?
If you are petitioning for divorce, you should generally file the petition in the country where you live if you meet the residency requirements of that country. To determine if you meet the residency requirements for filing a divorce petition, it is best to consult with a local lawyer to guide you through the process.
The respondent must follow the laws and rules of the country of the governing court where the petition is filed. If responding to a divorce petition filed in a different country than yours, it is best to obtain an attorney who is familiar with the specific laws of that country. You can chose to obtain an attorney who practices in your country of residence, but he or she will be of little help if unfamiliar with the requirements of the court of law where the divorce petition has been filed.
Pay attention to residency requirements if you have any question about where to file for divorce proceedings. For help, contact a local attorney to help navigate the court system that is appropriate for your situation.