When a couple has moved since getting married, and divorce becomes a possibility, one of the first questions is often: Where should I file for divorce? The answer depends on several factors, including where each spouse currently lives and the residency requirements of the state where the person wishes to file. Relocations, military marriages and families living in different states can complicate the answer to this question.
Does It Matter Which State I Got Married In?
Many people believe they must file for divorce in the state where they were married, but that is not true. In most cases, what matters is which court currently has jurisdiction to hear the divorce case.
How Is It Determined Which State Has Jurisdiction Over a Divorce?
Each state has its own family laws establishing the residency requirements for hearing a divorce case. These requirements generally specify how long a person must have lived in the state before that state has authority over the divorce.
In Texas, for example, family law generally allows a spouse to file for divorce if either spouse has lived in the state for the previous six months and in the appropriate county for at least 90 days.
Can I Get Divorced in Texas If My Spouse Lives in Another State?
Both spouses do not need to live in Texas for a divorce to be filed in the state. The spouse filing the case must meet Texas residency requirements.
If the other spouse agrees to the divorce, they may sign documents consenting to the jurisdiction of a Texas court. If the spouse does not want to participate, they must be formally served with notice of the case.
After being served, the spouse may still choose not to participate. You may still be able to obtain a divorce, but the court might not have the authority to divide certain marital property or order the out-of-state spouse to pay child support.
Can I Get Divorced If My Spouse Lives Outside the United States?
Yes. Technically, you can get divorced even if your spouse lives outside the United States. Depending on the circumstances, a U.S. court may have jurisdiction over the case.
However, legally notifying the other spouse and satisfying certain procedural requirements can be more complicated when one party lives abroad. When the spouses can communicate and both agree to the divorce, the notification process may be easier.
The recognition and enforcement of certain orders may also depend on the laws of the other country. These details should be discussed with an attorney who can evaluate the specific circumstances of the case.
How Can My Immigration Status Affect a Divorce?
A common concern among people considering divorce is that they will automatically lose their immigration status. However, the effect of a divorce on immigration status depends on the circumstances of each marriage.
In some cases, divorce may affect immigration applications or benefits based on marriage when the residency or citizenship process has not yet been completed. In other cases, the person may retain their status or have other immigration options available.
Family law and immigration law are separate legal practice areas. It is therefore important to speak with both an immigration attorney and a family law attorney to understand the potential implications for your particular case.
Is Child Custody Determined During the Divorce?
Generally, if the state handling the divorce also has jurisdiction over the children, custody orders may be included in the final divorce decree. However, that is not always the case.
When a custody case or a divorce involving minor children is filed, authority to make the initial custody determination usually belongs to the child’s “home state.” This is generally the state where the child lived with a parent for at least six consecutive months immediately before the proceeding began.
Exceptions exist, so a recent move may require additional analysis. When children live in a different state from one of their parents, it is important to ensure that orders issued in different states do not conflict.
Does It Matter If My Spouse and I Live Apart?
A married couple may spend months or years living in different states or countries because of employment, military service or immigration matters. Although this arrangement can raise questions about divorce, the law does not create a special category for long-distance marriages.
Living apart does not make the marriage invalid, but it also does not create an automatic divorce. Distance alone does not change the rights or obligations that come with marriage.
If I Had a Common-Law Marriage and One of Us Moved to Another State, Do Common-Law Marriage Rules Still Apply?
Recognition of a common-law or informal marriage depends on the requirements of each state. Only a minority of states recognize common-law marriages, and each state that does has different requirements for establishing a valid marriage.
For example, if a couple lives in Texas and meets the requirements for a common-law marriage, the parties may be able to pursue a divorce in Texas. However, if they move to a state that does not recognize common-law marriage, they may not be able to pursue the divorce in the new state.
Determining whether common-law marriage rules apply during a divorce depends on several details. The analysis will primarily consider whether the marriage satisfied the requirements of the state where it was established and the state where the divorce is being filed.
One detail many people do not know is that when a Texas couple separates and neither party files a proceeding to prove the existence of the marriage within two years, Texas law establishes a presumption that the couple never agreed to be married.
Considerations for Military Families
When one or both spouses serve in the Armed Forces, determining where to file for divorce may require additional analysis. Permanent change of station orders, deployments and other military assignments can cause a person to live temporarily in a state other than the one they consider their legal domicile.
For this reason, a service member’s physical location does not always determine where the divorce may be filed. It may also be necessary to consider:
- The state the service member considers their legal domicile.
- Where the service member is currently stationed.
- The state where the other spouse resides.
- Where the children live.
- Each state’s residency requirements.
- The location of assets, property or military benefits that may be divided.
The Servicemembers Civil Relief Act, commonly known as the SCRA, also provides certain procedural protections to military service members. For example, under some circumstances, a service member may request a temporary stay of court proceedings if military duties materially affect their ability to participate.
However, these protections do not automatically prevent a divorce from being filed or moving forward.
Military families must also consider how the selected jurisdiction could affect the division of military retirement benefits, child custody, support and other service-related benefits. Because both state and federal laws may apply, consulting a family law attorney familiar with the unique aspects of military divorce is recommended.
What Happens If More Than One State Can Hear the Divorce?
In some situations, both spouses may qualify to file for divorce in different states. This does not necessarily mean that two divorces can proceed simultaneously.
The court may need to determine which case was filed first, whether it has authority over both spouses and which state has the most appropriate connection to the issues that must be resolved.
Having the option to file in more than one state may also affect which laws apply to property division, spousal support and other matters. Filing quickly without first evaluating the available jurisdictions can therefore have significant consequences.
How Can I Determine Where to File My Divorce?
Moving after getting married may bring substantial changes to a family’s environment, support network and way of life. However, a move does not automatically determine where the divorce must be filed.
Before beginning the process, it may be necessary to evaluate how long each spouse has lived in their current state and county, where the children reside, whether property exists in different jurisdictions and whether either spouse serves in the Armed Forces.
Clarifying these details from the beginning can help prevent delays, additional expenses and court orders that are difficult to enforce.
The Carlson Law Firm helps individuals and families understand how relocation, residency and jurisdiction may affect a divorce. Our attorneys can evaluate the particular circumstances of your case, explain your legal options and help you determine where you may begin the process.
We care. We can help.
