Divorce Residency FAQ's

The court that handles the initial divorce settlement will have jurisdiction over all other issues. These include child custody, child support, and any amendments to these arrangements.

The chart below provides the required duration of divorce residency. We also answer your divorce residency FAQs.

Explore the residency rules in your state to get started. But the rules in your area may be more complicated. For help understanding how these requirements impact your situation, it may help to speak with an attorney.

Divorce Residency Requirement by State

Frequently Asked Questions About Residency and Divorce

Knowing the length of residency required for divorce in your state is a good start, but you might still have questions. Below, we've compiled some of the most common questions about residency and divorce.

• What's 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 the division of 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 their residency?
• Does divorce residency affect child custody?
• Divorce residency questions? Get peace of mind with a divorce lawyer

What's the Difference Between Residence and Domicile?

A spouse's presence within a state is important when determining divorce residency. Some states refer to this presence as "residency," while others refer to it as "domicile."

If your state's divorce law requires that the spouse's domicile be that state, they must have a fixed, permanent home there. They must intend to stay. 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 you only have one domicile. If your state's residency divorce law requires a spouse to be a resident, they'll have to be present in that state for a certain amount of time. Domicile is a stricter standard because you must establish that the state is the spouse's true home.

Courts consider factors such as:

• Where the individual's family lives
• Voter registration
• Possession of a valid driver's license
• Where they work
• Location of a registered vehicle

If the spouse files for divorce, but the other spouse doesn't have a presence in that state, courts may still be able to grant the divorce. However, some residual issues, such as property division and child custody, may be out of their control.

Can a Spouse Move to Another State or Country to File for Divorce There?

Yes, as long as that spouse can prove legal residency in that state or country, according to the law. Once granted in one state, all other states will recognize the divorce as valid. That state may not have jurisdiction over other decisions when the other spouse or minor children live in a different state. These include child custody, property division, alimony, and spousal support. The non-resident spouse can consent to the jurisdiction. This will allow the court to proceed with those other decisions.

What State Has Jurisdiction Over Child Custody?

The home state of the child has custody jurisdiction. In some cases, another state may be able to assert continuing jurisdiction. The state that entered the original order can claim jurisdiction in any custody modification. But one of the parties must remain a resident of the original state.

What State Has Jurisdiction Over the Division of Retirement Plans and Military Pensions?

Whichever state has personal jurisdiction over the retirement plan member may order the plan's division. This usually means the residency or domicile of that member is proven. Courts sometimes rule that the other state has jurisdiction if the plan maintains contact with another state.

All states differ in their treatment of military pensions, so the state you choose can be critical. Research and aim for the state that best serves your needs. Consult a family law attorney to learn how your state handles retirement accounts.

If My Spouse Moves Out of State, Can I Still File for Divorce in Our Marital State?

Yes. As long as you fulfill the divorce residency requirements, you may file in the state in which you live. If possible, try to have your spouse sign the papers before the physical separation. You may want to consider a legal separation agreement before the other spouse moves.

What if I Can't Find My Spouse or Don't Know Their Residency?

If you can't find your spouse, 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. Show the court that you made a diligent effort to find them. You can get permission to serve your spouse via service by publication. This usually means running a newspaper ad.

Complete all your divorce papers, file them in family court, and serve the papers. If your spouse still doesn't respond or appear, then the court can issue a default divorce judgment.

Does Divorce Residency Affect Child Custody?

When determining child custody, most courts will use the best interests of the child standard. They'll consider the child's lifestyle and the impact of change on the child. They look at the effects of separation from one of the parents. They consider the ability of the parents to encourage communication with the other parent. The judge may ask the child's preference for custody. The residence of one of the parents can impact any of these things, and the court can consider that.

The judge may set up a visitation schedule specific to parents who live far apart. These types of visitation schedules take into account travel time and inconvenience. They look at school schedules. They might give the non-custodial parent a longer period for visitation, not only on weekends. These schedules also set out who will handle the transportation of the child. Courts often respect arrangements the parents work out together so long as they benefit the child.

If custody arrangements are in place and one of the parents wishes to move a 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. If one parent has sole custody of the child or has a domestic violence restraining order against the other parent, the court may permit them to move.

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

When it comes to the divorce process, the laws can be fuzzy. If you still have questions or concerns after reading this divorce residency FAQ, please seek help. A divorce lawyer can explain the state laws and set you on the right path. Only an attorney can give you legal advice. Get started today by finding a qualified family law or divorce attorney near you.