Can you use state residency requirements to improve the outcome in your divorce?

Every state has unique residency requirements that must be met before a person can get a legal separation or divorce in a state court.

In California one spouse must be a resident of the state for six months and of the county in which the proceeding is filed for three months immediately preceding the filing of the Petition for Dissolution of Marriage (aka divorce).

If both spouses have lived in California for at least 6 months but in different counties for at least 3 months, they can file in either county.

If spouses do not meet the residency requirements for filing divorce but one spouse lives in California, a spouse can file for a legal separation. Then once enough time has passed and the residency requirements for a divorce are met, either spouse may file an “amended petition” and ask the court for a divorce.

If a spouse to a legal separation action in California wishes to get divorced but the other does not, the dissenting spouse cannot stop the divorce from being processed. The court will convert a legal separation into a divorce at the request of one spouse.

If a spouse is enlisted in the military, the residency requirements may be satisfied in three separate states or counties: (1) the state or county in which the enlisted spouse is stationed; (2) the enlisted spouse’s actual state or county of residency; and (3) the civilian spouse’s state or county of residency.

If the state’s residency requirements for a divorce or legal separation haven’t been met before a Petition is filed, the court does not have the authority to process the case and it should be dismissed.

I use should because there always is the possibility of the court accidentally overlooking the error or a spouse committing perjury (lying) about satisfying residency requirements.

It isn’t wise to lie about satisfying residency requirements because perjury is a criminal act that could haunt a person forever.

How are residency requirements strategically used in divorce?

If spouses live in different states the spouse who initiates the legal action may be able to choose the state court with laws, rules, judges, and procedures most favorable to the  initiating spouse.

In some cases the laws, rules and procedures of each of the two or three (military divorce) states are so diverse that if the same case were filed simultaneously in each state the outcomes could be completely different.

As examples, one state may be a community property state with clearly established parameters for establishing and calculating spousal support. The other state may be an equitable distribution state with vague and/or discretionary spousal support laws.

Having the option of filing in a number of states can have a significant impact on a case.

For example, Katie Holmes had the option of filing for divorce in California or New York.

I presuppose she intentionally filed in New York because New York’s child custody laws gave her a better chance of being awarded primary custody of Suri.

If Katie would have filed in California it’s likely the court would have granted Tom and Katie joint physical and legal custody even if Katie had concerns about Tom’s faith in the Church of Scientology.

If a spouse has the ability to file in a number of counties within California, the spouse may choose one county over another to avoid or pursue particular judges or local rules and procedures.

As examples, a spouse may wish to file for divorce in Marin County because of the Settlement Bench Bar Conferences that are unique to Marin. Or a spouse may choose not to file in Santa Clara county because he/she anticipates the case will require a trial that will last longer than two days and the spouse does not want his/her case to be bumped off of the family court’s calendar and onto the civil court’s master, which would significantly change the trial process.

So, can state residency requirements be strategically used to improve the outcome in your divorce?

They may, which means it’s extremely important to speak with an experienced and knowledgeable California trial attorney before filing for divorce. It also could justify taking great care to file and serve divorce papers before your spouse to ensure your choice of forums.

If you have questions about where to file your divorce and would like my help, please complete the confidential form below and my assistant will contact you to see how I may be of service.

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