How to Get a Divorce Out of State
By Beverly Bird
If your marriage is headed for divorce, filing in another state might offer some advantages. The laws might allow finalization of your divorce more quickly than your current jurisdiction. You might want to move because your marriage has ended, and you don’t want to wait to relocate until it is officially over. The divorce process in most states is very similar, but some practical considerations apply.
Speak with your spouse if you have children, and you want to take them with you. Most states will not allow you to relocate with your children without your spouse’s consent or the approval of the court.
Write out your agreement with your spouse if he consents to your move with your children. Have it signed and notarized or have an attorney draft it and file it with the court on your behalf. Using an attorney is preferable, because if your spouse later contends that you didn't have his legal permission, a court might order your children to come home.
File a motion with the court asking for permission, if your spouse does not agree to let you move with your children. This will probably prompt a custody hearing. If you don’t want to file for divorce in your current state and have custody issues heard by a judge that way, most states allow you to file a lawsuit just to address custody matters.
Establish residency in the state you’re moving to. All states require that you live there a minimum period of time before you can file a divorce complaint or petition. In Nevada, this is only six months. Other states, such as Maryland and Massachusetts, require you to live there for an entire year if your grounds, or the reason you’re breaking up, happened elsewhere. Check your prospective state’s website to find out what rules apply there.
File for divorce after you’ve established residency. This process also varies from state to state, but in all jurisdictions, you must file a complaint or petition to get the process started. Speak with an attorney in your new area to make sure you understand the procedure, even if you don’t want to retain him to handle your entire divorce.
Arrange to have your spouse served with your papers after you’ve filed for divorce. All states require that you give your spouse a copy of your petition. Acceptable methods also vary between jurisdictions, so check your state’s website to find out what applies in your new location. Your new state’s rules would govern the process, not those where you used to live. If your new state requires service by a sheriff’s officer, you’ll have to contact the department in your former state to have this accomplished. Some states will allow you to serve your spouse by certified mail.
Some states, such as California, are community property states, but most are not. If you relocate to a community property state, its laws will dictate how the court will divide your marital property between you, even if you acquired it in a non-community property state. Such property is “quasi-community property” and courts usually divide it 50/50 between you and your spouse, regardless of any factors that might warrant one of you receiving a disproportionate share.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.