Getting a divorce in different states refers to the common situation in which the parties to the marriage have separated and no longer live in the same state. You might be correct in assuming that you could file for divorce in either state, but there here are three tips to help you decide where you can get your divorce.
You need to know the law in both states
Jurisdiction is the authority the laws of a particular state give to their courts to hear certain types of cases. For example, one state might confer jurisdiction to its courts in divorce actions in which the marriage was entered into within the state, but another state might add that at least one of the parties to the divorce must be a resident of the state.
There are only a few states that do not a residency requirement for a person wishing to file for divorce. Alaska, for example, only requires that you prove that you are living within the state when you file your divorce action with the court. Other states, such as New York, make it more difficult. New York will not allow you to file for divorce unless you meet at least one of the following requirements:
. You were married in New York and either you or your spouse have lived there for at least one year prior to filing for divorce
. You and your spouse lived in New York as a married couple and at least one of you has resided there for at least one year before filing for divorce
. If you cannot meet either of the two previous conditions, then you or your spouse must be a resident of New York for at least two years before the divorce can be filed
Establishing jurisdiction over your spouse
Assuming that you meet New York’s strict standards for jurisdiction because you and your spouse were married in the state and you have been a resident for at least one year, you still might have a problem with jurisdiction. The fact that you meet the jurisdiction requirements to file the divorce action does not automatically give the New York courts jurisdiction over your spouse. She must be served with the summons and complaint in the divorce to obtain jurisdiction over her.
What happens if both spouses file for divorce?
It is not unusual for spouses to file for divorce in different states at the same time. If the parties each met the jurisdictional requirements of the state in which the divorce was filed, each of the states would have jurisdiction over the termination of the marriage.
As a practical matter, the court in which the first action was filed would probably be the one to invoke jurisdiction with the court in the other state deferring. If there are young children, the court in the state in which the children are residing would have jurisdiction over the custody issue, so retaining jurisdiction over the divorce would also make sense.
A divorce in different states can complicate a divorce. If you are faced with a choice of two states in which to file for divorce, you might benefit from discussing your options with a divorce and family law attorney.