Divorce Residency FAQ's

Almost all states require you to be a resident before you may file your divorce papers there. The required length of time varies per state, but it's at least six months in most states. When you file your divorce papers, you must show proof that you have resided in that state for the required amount of time.

Whatever court handles the initial divorce settlement has jurisdiction over all other residual issues such as child custody, child support, and any amendments to these arrangements.

The chart below provides the required durational period of divorce residency, followed by divorce residency FAQs.

Divorce Residency Requirement by State

Q: What's the difference between residence and domicile?

A: When determining divorce residency, a spouse's presence within a state is important. Some states refer to this presence as "residency," while others refer to it as "domicile." If your state's divorce law requires a spouse to be domiciled in that state, they must have a fixed, permanent home in that state, with the intention of staying. But if your state's divorce law requires a spouse to be a resident in the state, then they must merely be present.

Because of this difference, a person can have several residences, but only one domicile. If your state's residency divorce law requires a spouse to be a resident, then they'll have to be present in that state of residence for a specified length of time. Domicile is a tougher standard because you must establish that the spouse's single true home is located in that state.

Courts tend to consider factors such as where the rest of that individual's family lives, where they vote, where they work, where their car is registered, and so on.

If the spouse files for divorce in the state in which they reside, but the other spouse doesn't have a presence in that state, courts may have the authority to grant the divorce, but not residual issues such as property division and child custody.

Q: Can a spouse move to another state or country to file for divorce there?

A: Yes, as long as that spouse can prove residency in that state or country, according to the requirements of the laws there. Once a divorce is entered in that state, all of the other states will recognize this divorce as valid. That state may not have jurisdiction over all other decisions such as child custody, property division, alimony, and support. But if the non-resident spouse consents to the jurisdiction, then the court may proceed with those other decisions.

Q: What state has jurisdiction over child custody?

A: The home state of the child has custody jurisdiction, unless another state asserts continuing jurisdiction. The state that rendered the original custody decree can assert jurisdiction in any modification proceeding as long as one of the parties remains a resident and that state has jurisdiction under its own laws.

Q: What state has jurisdiction over the division of retirement plans and military pensions?

A: Whichever state has personal jurisdiction over the member of the retirement plan may order the plan's division, which usually means that residency or domicile of that member can be proven. If the plan itself has sufficient contacts with another state, courts sometimes rule that the other state has jurisdiction.

All states differ on their treatment of military pensions, so the state you choose can be critical. Be sure to research your options and aim for the state that will best serve your needs.

Q: If my spouse moves out of state, can I still file for divorce in our marital state?

A: Yes. As long as you fulfill the divorce residency requirements, you may file in the state in which you live. For your own convenience, try and have your spouse sign the papers before the physical separation.

Q: What if I can't find my spouse or don't know their residency?

A: If you can't find your spouse then you can file a missing spouse divorce. Don't let the fact that you don't know where your spouse is stop you from getting a divorce. Simply show the court that you made a diligent effort to find them, and then get permission to serve your spouse via service by publication (i.e. run a newspaper ad).

More specifically, complete all of your divorce papers, file them in divorce court, and serve the papers. If your spouse still doesn't respond or appear, then the court can issue a default divorce.

Q: Does divorce residency affect child custody?

A: When determining child custody, most courts will apply the best interest of the child standard. They'll consider the child's present lifestyle, impact of change on the child, impact of separation from one of the parents, ability of the parents to encourage communication with the other parent, and the child's preference. The residence of one of the parents can have an impact on any of these things, and the court can take that into consideration.

The judge may set up a visitation schedule that the courts have specified for parents who live a great distance apart. These types of visitation schedules take into account travel time and inconvenience and school schedules, and give the non-custodial parent chunks of visitation time, rather than small weekend visits. These schedules also set out who is responsible for the transportation of the child. Oftentimes, courts are very respectful of any arrangements the parents work out themselves, so long as they are beneficial to the child.

If there has been a custody arrangement ordered, and one of the parents wishes to move a great distance away, they must notify the other parent and the court. The court can't restrict the parent from moving, as this would be unconstitutional; however, the court and the parents may need to revisit the custody and visitation arrangement.

Divorce Residency Questions? Get Peace of Mind with a Divorce Lawyer

When it comes to divorce residency issues, the laws can be fuzzy. If you still have questions or concerns after reading this divorce residency FAQ, a divorce lawyer will be able to explain the laws and set you on the right path. Besides, the other party (your ex) likely will have their own attorney. Get started today by finding a qualified divorce attorney near you.