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Filing for Divorce in Separate States: a Quick Guide

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By Ephrat Livni, Esq. on November 12, 2015 11:58 AM

You are getting out of your marriage and out of this place. But wait. How do you file for divorce if you move?

Splitting from separate states brings a few added considerations to the question of where to file for divorce. Let's look at them here.

Residency

If you are splitting up and splitting town, your soon-to-be-ex should hang around. Requirements differ from state to state but generally for a court to have jurisdiction over a marriage -- even if only in order to dissolve it -- at least one of the two people who make up the couple must be a state resident. Almost all states (except Alaska, South Dakota, and Washington) require you to be a resident of that state to file for a divorce there.

If you are already living in two separate states and have been for at least several months, then you may already be a state resident. In that case, either person can file for divorce from either state. The first to file will decide in which state the divorce is done.

Choosing a Venue

Because states have different approaches to divorce, some couples should carefully consider the court where they will file. If you are splitting up and have no kids, no property, and nothing left to fight about, then your venue will not be critical. You can choose a state, file papers, and wait for the paperwork to be processed.

But if you are a couple that has acquired property, be strategic. Some states divide property equitably, meaning a judge will decide a fair arrangement, whereas others divide things equally, meaning assets and liabilities are split and distributed evenly. The latter approach is taken in what are called "community property" states.

Community Property States

While property owned by either spouse prior to the marriage can remain the property of the original owner, most things acquired after the wedding (community or marital property) and before separation are subject to division upon divorce.

Nine states take the community property approach to divorce, as does Puerto Rico. Alaska is the only state that allows couples to choose whether to adopt a community approach themselves or whether to allow for an equitable split based on a judge's determination.

The community property states are as follows:

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington

Keep in Mind Child Custody

Couples who have children should consider the venue of the divorce very carefully. Ideally, you will both agree on where to file based on your situation and the laws of your state.

But if you cannot agree on anything anymore, do your research. Make sure you understand the different approaches to child custody and visitation in the states relevant to you. Speak to a local divorce lawyer who will be able to explain the critical details and help you make a decision that will work for you and your kids.

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