What is state residency and how it’s used strategically in divorce

Every state has unique residency requirements that must be met before a person files a Petition or Complaint for divorce or dissolution. If you or your spouse satisfy a state’s residency requirements, that state’s court has jurisdiction or the legal authority to make legal decisions about your marital status and issues related thereto. If you or your spouse do not satisfy a state’s residency requirements, but nonetheless file a Petition or Complaint incorrectly, the divorce, dissolution or annulment cannot be granted and the court will eventually dismiss the case.

State residency requirements are based upon the length of time that a person resides in a particular state and vary from a minimum of thirty days in Alaska to one year in Connecticut, Maryland, Massachusetts and a few other states.

A husband and wife who are separated and living in two separate states may satisfy the residency requirements in each state and may be able to file for divorce in either, however in a contested case, the person filing the Petition or Complaint should do so in the spouse’s state of residency to ensure the court has personal jurisdiction over the party.

If a spouse is enlisted in the military, the residency requirements may be satisfied in three separate states: (1) the state in which the enlisted spouse is stationed; (2) the enlisted spouse’s actual state of residency; and (3) the civilian spouse’s state of residency. If you are divorcing an enlisted spouse who has a military retirement or pension plan that may be a marital asset, speak to a family lawyer who is experienced in “military divorces” to determine which state court has jurisdiction over the retirement or pension plan before choosing the state in which to file your divorce.

A common mistake people make is thinking they must file a Petition or Complaint for divorce in the state in which they were married. This is not correct. A person may only file for divorce or dissolution in the state of their marriage if they meet that state’s residency requirements at the time the Petition or Complaint is filed. To determine your state’s residency requirements, visit your state court’s website or a local family court.

If you and/or your spouse do not satisfy the residency requirements in the state in which you are currently living, determine if you may file a Petition or Complaint for legal separation instead, which is possible in California if you meet the state’s three month residency requirement. After a Petition for Legal Separation is filed in California and the six month residency requirement is met, either spouse may ask the court grant a divorce instead of the Legal Separation as initially filed

While state residency may appear to be a relatively unimportant procedural hurdle, if you have the option to file for divorce in more than one state or country, it can make a significant difference in the outcome of a case.

For example, Katie Holmes had the option of filing for divorce in California or New York. She intentionally filed in New York because New York’s child custody laws gave her a better chance of being awarded primary custody. If she had filed in California it is probable that the court would have ordered Tom Cruise and Katie to share joint physical and legal custody of Suri – even with Katie’s concerns about Tom’s faith in the Church of Scientology.

So if you have the option of filing divorce in more than one place, whether country, state or county, it is worthwhile to understand how the divorce laws differ in each place and which is most advantageous for you. You probably will need to consult with attorneys in each location but in my opinion, it is a good investment if there is any chance that your divorce may be anything other than amicable.

This article is not legal advice. You should consult an attorney if you have legal questions that relate to your specific divorce.

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