What to Do About Divorce in Two Separate States?

A divorce usually proceeds in the state where a divorce complaint is filed first.

When you and your spouse live in separate states and it is your intention to get a divorce, your first move should be to find out which state has the most favorable laws for your particular situation. Of course, if your divorce is antagonistic, then each of you will want jurisdiction where you live, a so-called "home court advantage." In this case, it generally comes down to who files for divorce first. Most states will defer to another state and relinquish jurisdiction to allow the other state to proceed once a complaint is filed and the court there has achieved jurisdiction over the spouse.

Residency

In all states, you must be a resident and domiciled there in order to file a complaint for divorce and begin the divorce proceedings. For legal purposes, domicile is the place where you maintain a residence and habitually return, even if you spend some portion of the year elsewhere. This distinction is especially important in northern states where people sometimes have "winter homes" in warmer climates. The home they return to after the winter months are over is generally their place of domicile, not the place where they live only a portion of the year. The length of residency and domicile varies from state to state. In Alaska, you can file for divorce only 30 days after you move there. In Massachusetts, it is a full year. Check with an attorney to find out what the requirement is in your state to determine if you have lived there long enough to file.

Service of Process

After you file your complaint for divorce, the court must then achieve jurisdiction over your spouse in order to rule on your divorce. This is done by service of process, serving your spouse with your complaint and proving to the court that he received it. Some states will allow you to do this by registered mail. Others require that you hire a process server in your spouse's state to deliver the complaint to him.

Other Ways of Securing Jurisdiction

In extremely contentious divorces, one spouse might try to dodge service. She won't sign for registered mail and she will avoid any process server you hire in an effort to serve you first so her state has jurisdiction. This can sometimes happen even if you don't accept service of her complaint. For instance, if she files a motion for support and you respond to it, even if you have not acknowledged receipt of her complaint, you've legally made an appearance in her divorce action and some states will rule that she now has service over you because of that. If this happens, you should hire an attorney to notify her court that you will respond once the matter of which state has jurisdiction is decided.

If You Have Children

When you have children and the court must rule on issues of custody, then federal law takes precedence over state law. According to the Uniform Child Custody Jurisdiction and Enforcement Act, passed in 1997, the state that has jurisdiction over custody of your children is usually the one where they have resided for the six months prior to the filing of the divorce complaint. Your state can rule on all other aspects of the divorce, but custody issues must be decided in the state that has jurisdiction over the children according to the UCCJEA.

References

• Divorce Source: California -- Which State Can and Should You File Your Divorce Proceeding; Peter M. Walzer, Esq.
• The Modern Woman's Divorce Guide: Residency Requirements for Divorce by State
• U.S. Department of Justice: The Uniform Child Custody Jurisdiction and Enforcement Act