Residency Requirements in Divorce

A court's power to decide a divorce case is usually determined by residency. That is, a divorcing spouse is generally required to bring the divorce action in the state where he or she maintains a permanent home. The residency requirements vary by state, but all states require a spouse to be a resident of the state often for at least six months and sometimes for as long as one year before filing for a divorce there.

The spouse who files for divorce must offer proof that he or she has resided in the state for the required length of time. Only three states - Alaska, South Dakota and Washington - have no duration of residency requirement. In other words, being a resident at the time you file for divorce is enough in those states.

The Difference between Domicile and Residence

Some states use the term ''domicile'' while other states use the term ''residence'' in their laws. Both of the terms relate to a spouse's presence within a state.

When a state law requires a spouse to be domiciled in the state, that means that the spouse must have a fixed, permanent home in that state. When a state law requires a spouse to be a resident in the state, that means the spouse must be present in the state. A person can have more than one residence but only one domicile.

If a state law requires a spouse to be a resident, it usually requires that the spouse be present in the state for a specified amount of time before filing for divorce. If a state law requires that a spouse be domiciled in the state, that is a tougher standard to meet because the spouse must have their one true home located in that state.

Factors that Determine Location of True Home

A court may look at the following factors if there is a doubt about the location of a spouse's true home:

• Where the rest of the person's family lived - it is assumed that people live with their families
• Where the person voted, or otherwise participated in community activities
• The person's place of employment
• Car registration and driver's license
• Location of bank accounts
• Where the children are schooled
• Where more than one residence is involved, the order in which they were acquired (people tend to buy homes before vacation cottages), how they were paid for (second mortgage on ''home'' to pay for ''cabin''), and how they are used (people tend to lend their vacation residences, not homes, to others to use) may also be relevant

In some instances, courts may have the authority to grant a divorce but not decide other issues, such as division of property, alimony and custody. This can happen when the spouse filing the divorce case resides in the state, but the other spouse doesn't have a presence in the state.

Questions for Your Attorney

To determine the exact nature of your rights and duties relating to a divorce, you must consult the relevant laws for the state in which the divorce is filed, which is one of the items that an attorney can help you with. Also, issues involving a court's authority to act on a case can be complex, so you may wish to consult with an attorney if you are unsure about whether you are able to satisfy your state's requirements.

You may want to ask an attorney the following questions:

• What are the advantages of using an attorney to get a divorce rather then doing it by myself?
• How much experience do you have with divorce cases?
• Do you have references that I can contact, preferably divorce case clients?

Related Resources on Lawyers.com^sm