Where you can file for divorce will depend on which state you or your soon to be ex are residents of, but with some limitations and exceptions.
As is the case with any court action, there are numerous legal requirements that you should understand if you are contemplating filing for divorce. Among these requirements are where to file (legally referred to as “jurisdiction”). It is possible to file an action for divorce and have the action rejected because the jurisdiction is not valid. Briefly herein will be an explanation of how to determine if the jurisdiction is correct.
In most states, in order to file an action for divorce you or your soon to be ex must be a resident of the state where you want to file for divorce. The time period varies from state to state, from six weeks to two years. Many states split the difference and have a time period of six months. To determine the time period, you must determine what “resident” means. A resident of a state can be defined as where you are domiciled or where a person has his or her permanent principal home to which he or she returns or intends to return. More bluntly, where you put your head down at night and where you keep your belongings.
Case law basically holds that the period of residence is jurisdictional, although some case law does hold that it is not. However, domicile is necessary for subject matter jurisdiction in divorce, meaning that if you or your husband/wife is not a resident of a particular state, the court may not have jurisdiction to hear your action.
Often Where you can File for Divorce will be Obvious.
If you live in California and your soon to be ex lives in California, then you will file for divorce in California. However, if you live in Arizona and he or she lives in California, then the jurisdiction issue will arise. Contact an attorney to find out specifically what your state requirements are, and how you can serve notice to your spouse that you are suing for divorce.
There are a few exceptions to the residency requirement. Among these are for those serving in the Armed Forces. In many states, if you or your spouse is in the military, the residency requirement is ninety days. Another exception is if both parties are physically present before a court in a particular state. Again, in these cases, consult with an attorney as to your states’ particular requirement.
By Christopher Yannon