Sometimes spouses live in different states. Various reasons exist for these living situations to occur. It could be work-related or it could be because they have separated. It happens often when couples live on the border of another state, but there are certain situations where they live on the other side of the country from each other. Regardless of the reason or location, when the couple decides to divorce, questions arise as to where to go for the divorce and how to proceed with it.
At Heritage Law Office, our divorce lawyer in Minnesota explains what you need to know because where you file matters. Contact us through our online form or at 414-253-8500 to schedule a free consultation where we will discuss your circumstances and provide comprehensive legal services for your divorce.
How to File for Divorce When Your Spouse Resides in a Different State
While filing for a divorce is never easy, when you and your spouse live in different states, it can become more complicated. Divorces between parties living in different states are often referred to as interstate divorces. How you proceed in filing an interstate divorce depends on several different factors, including in which states you and your spouse are located. Every state has rules that are unique to them, and not following the right rules may delay or prolong your divorce.
Residency Requirement
All states have a residency requirement that must be met by at least one spouse before you can file papers for the dissolution of your marriage. Typically, the requirement is that one of you has resided in that state for either 3 to 12 months before filing for divorce. Each individual county in the state may have separate residency requirements, too.
If there are questions about residency, proof of it may be required before you are allowed to file for divorce.
Jurisdictional Matters
Proving residency in a state and filing for divorce in that state does not necessarily give that state jurisdiction over all the issues in the divorce, such as alimony, child custody, child support, and property division. Instead, the court may be limited to having jurisdiction over the marriage itself as it does not have jurisdiction over the other spouse. This means in these types of situations, the court may grant the divorce without deciding the other issues.
Both parties to the divorce can agree that a certain state has jurisdiction, and then that state is able to decide all issues related to the divorce. Personal jurisdiction may be established in other ways as well, such as through service or by appearing in court in the state seeking jurisdiction.
This really is a matter that should be addressed with an attorney in each state on a case-by-case basis.
First to File
If both parties have residency in their respective states, and each file for divorce, the first state in which pleadings are filed typically has jurisdiction. Also, once one state has established jurisdiction and issued an order, that order will be recognized by other states.
Special Considerations When Filing for Divorce in Minnesota When Your Spouse Resides in Another State
In many cases, you will be able to choose in which state you wish to file for divorce. If the divorce is amicable, and you and your spouse agree on the most important aspects, it may not make much difference in which state you choose to file. However, if you expect the divorce to be contentious, it is best to consider several different factors before deciding where to file.
Child Custody & Support
When you have an option of where to file for divorce, and child custody (parenting time) and child support are at issue, where you file may substantially impact these matters. Each state handles the determination of these issues in its own way.
For example, in some states, child support is determined by taking a percentage of the non-custodial parent's gross income, while in others the income of both parents is taken into consideration. Those two methods can render very different results. Obtaining legal counsel to identify your best legal options and ensure your interests and rights are upheld will be critical in securing parenting time and addressing child support.
Alimony
Alimony, which is known as spousal maintenance in Minnesota, is another matter that is dealt with differently, depending on your jurisdiction. Whether you seek alimony or want to avoid paying it, you should speak to a divorce lawyer in your state to understand each state's laws and procedures to determine the amount and duration of spousal maintenance. In rare cases, some states may allow fault-based divorces that can impact spousal maintenance to your benefit or detriment–which is just another reason to make sure you speak to a divorce lawyer in Minnesota.
Distribution of Property
Distribution of property laws varies by jurisdiction. Some states follow community property distribution, which means the property is evenly divided between the parties. Other states follow a more equitable distribution of property where marital property is divided according to what is just and fair. Here, too, some fault-based divorces may impact the way property is distributed. It's very uncommon but a possibility in some states, so again, speaking to a divorce lawyer is critical.
Contact an Interstate Divorce Lawyer in Minnesota Today
Divorce is hard enough, but filing for it when the spouses live in different states can make it a little harder. At Heritage Law Office, our divorce lawyer in Minnesota will answer your questions and provide you with all your legal options. We believe informed clients make the best decisions for themselves and their families. Contact us either by completing our online form or calling us at 414-253-8500 to schedule a free consultation today.
Frequently Asked Questions (FAQs)
1. What is an Interstate Divorce?
An interstate divorce occurs when a married couple lives in different states and seeks to terminate their marriage. The issue of jurisdiction—where the divorce can be filed and adjudicated—becomes a significant factor in such cases. Laws and requirements may differ depending on the state in which the divorce is filed, including how assets are divided, how alimony is calculated, and how child custody is determined.
2. How Do I Determine Where to File for an Interstate Divorce?
Generally, either spouse can file for divorce in the state where they are a resident. Each state has its own residency requirements, usually ranging from 3 to 12 months. However, it's essential to understand that filing in a particular state may have implications for child custody, alimony, and asset division, which may be different from what would apply in the other spouse's state of residence.
3. Can a Divorce Proceed If Only One Party Lives in the State Where It's Filed?
Yes, as long as one spouse meets the residency requirements of the state where the divorce is filed, the divorce can proceed there. However, the state may only have jurisdiction over the marriage itself and not other ancillary matters such as property distribution or child custody if the other spouse has not established some level of jurisdictional connection to that state.
4. How Are Child Custody and Support Handled in Interstate Divorces?
Child custody and support issues in interstate divorces are usually determined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which most states have adopted. The UCCJEA provides that the child's "home state"—where the child has lived with a parent for at least six consecutive months prior to the divorce—typically has jurisdiction to decide child custody matters. Child support calculations can vary by state, and both states involved might have differing rules about income calculation, percentages, and more.
5. What Happens If Both Parties File for Divorce in Different States?
In a situation where both parties have met residency requirements and file for divorce in their respective states, the state in which the first set of divorce papers is filed usually gains jurisdiction. Once a state's court has established jurisdiction and issued an order, that order is generally recognized by courts in other states under the principle of "full faith and credit," meaning the first state's ruling takes precedence.
Feel free to consult our contact page or call us directly at 414-253-8500 to discuss these and other questions specific to your situation.
