If you’re considering filing for divorce, it’s normal for you to feel overwhelmed and confused. Most divorcing spouses worry about property division, spousal support, and child custody issues, but before you can resolve those problems, you first need to make sure that you’re filing your divorce in the right place. You can’t file for divorce just anywhere you would like, and if you do, you risk the court dismissing your case before it starts.
In the past, frustrated spouses thought that moving to a new state with more favorable divorce laws would help them gain an advantage in their divorce outcomes. Some parties searched for states with courts more likely to award custody to a father or to jurisdictions that would force a more favorable property settlement for the filing spouse.
This type of "forum shopping" is no longer allowed in family court. Today, divorce laws in nearly every state require spouses to meet strict residency and domicile standards before the court will accept the divorce case.
Residency Reasoning and Definition
The law requires courts to have jurisdiction—or, legal authority—over any case it handles. This is why filing parties must meet residency standards before a judge can make any substantive, case-related decisions.
If the court accepts a case without having proper jurisdiction, it means that the judge won't have the power to hear the case or issue a divorce judgment. The other party can request a dismissal of the case or contest the decision even after the court finalizes the divorce.
In addition to ensuring that a court has the power to hear a case, residency requirements also prevent the filing spouse from forum shopping. Each state’s residency guidelines for divorce vary, but most define residency as the continuous time frame in which you or your spouse have lived in the state.
While there are a handful of states that only require a filing spouse to live in the state when they file, others mandate that at least one spouse in the divorce action live in the state for a minimum amount of time, ranging from six months to 180 days.
For example, in Florida, filing spouses must demonstrate that they have lived in state for a minimum of six months before filing for divorce, but Alaska only requires that one spouse is residing in the state at the time that spouse files the petition.
If you're a resident of the state where you’re filing for divorce and your soon-to-be-ex-spouse is currently living in a different state, you can file for divorce where you reside as long as you meet your state’s residency and domicile standards.
Domicile and It’s Importance in Divorce Cases
While some states only require you to meet residency standards before the court accepts your divorce case, others need you to demonstrate your domicile in the state as well. Domicile is a more complex and burdensome standard to meet, as it requires you to convince the court that you intend on staying after the divorce.
Courts typically define “domicile” as the residence you consider to be your permanent home and to where, anytime you're absent (for vacation or an extended work trip, for example) you intend to return.
You can only have one domicile, but you can hold multiple residences. For example, if you own a home in Texas where you’re a registered voter, but you spend your summers at the family cabin in Massachusetts, both homes may be considered your “residence,” but only Texas is your “domicile.”
Some states require you to demonstrate your residency and domicile together before you file for divorce. For example, if you want to file for divorce in Colorado, you’ll need to prove to the court that you’ve lived in the state for at least 90 days and that you intend on making Colorado your permanent home. The courts want to ensure that you’re not residing in the state solely to file for divorce.
How Do I Prove Domicile?
Proving domicile isn’t as complicated as one might think. The courts will primarily look at the following factors to determine if you or your spouse established domicile:
- where your extended family lives and where you spend time with them
- where you or your spouse are registered to vote
- where you pay city or state taxes
- your involvement in your local community, such as a member of the city library or a volunteer in a local organization
- established bank accounts, including business accounts
- whether you have a state driver’s license, and
- where you or your spouse’s car is registered.
Custody Issues and Residency
If child custody is an issue in your divorce, it’s essential for you to understand that you must resolve custody issues in your child’s “home state.” Each state has different standards for determining a child’s home state, so it’s vital that you understand yours before you file for divorce or decide to relocate and file.
For example, for the court in Michigan to relinquish jurisdiction of a custody matter to a new state, the child must reside outside of Michigan for at least six months. If you move to Ohio and attempt to file for divorce and handle custody matters three months later, the court will reject your case because Michigan still has the authority to rule on your custody matters.
Before you relocate to a new state and file for divorce, you’ll need to ensure that you meet the new state’s residency and domicile requirements and ensure that you've met any home state requirements as well.
If you’re unsure of your state’s residency requirements, it’s best to speak with an experienced divorce attorney before you file.