After a marriage breaks up, it’s not unusual for one spouse to make the decision to move to a different state for a new job, to be closer to family, or simply to make a fresh start. However, getting divorced in California can become a bit more complicated if your spouse moved out of state before a formal filing took place.
Where spouses (and children if any), reside in different states prior to the filing of divorce, more than one state may have jurisdiction to handle the divorce. In that case, it is usually a race to see who can file for divorce first and then have the other party personally served with the divorce papers. The first to complete these steps, usually gets their state of residence to handle the divorce.
So what does it take to establish residency in California in order to file for divorce here? Generally, subject to some loopholes, for a spouse to file for divorce in California, that person must have lived in the state for at least six months, and in the particular county of filing for divorce (aka, a “petition for dissolution of marriage”) for at least 3 months. But as noted, there are some tricks to get around this as well.
For example, if you just moved to California, and you have not quite been here for 6 months, you can get around the residency requirement by filing for “Legal Separation” (in which all your rights as a separated couple are determined such as alimony and division of property, with the exception that your status as a married couple is not terminated) with leave to amend your Petition for Legal Separation to Dissolution of Marriage (i.e. divorce), upon meeting the 6 months / 3 month residency requirement noted above.
If there are children of the marriage, and they only have residency in one state, then divorce generally needs to be filed in that state where the children have residency because only that state may properly make orders for Legal and Physical Child Custody and Child Support.
If proper jurisdiction can be held in two competing forums, one should consult with an attorney to consider the pros and cons of which forum is the best option. Considerations can include which states are most/least generous when it comes to spousal support, child support, and division of property held by the parties. Considerations also include where it will be most convenient and cost effective for you to file for divorce (usually your home state), where significant real property of the marriage is located, and where the children reside.
Your First Step
If you have made the decision to file for divorce from an out-of-state spouse, contact Buncher Family Law, specializing in divorce and family law services and considered to be among the best divorce attorneys in Irvine, CA. We handle virtually all facets of family proceedings as they relate to divorce, including divorces in which one spouse lives out-of- state.
Contact our office to learn about the necessary steps to begin the divorce process.