Family Law

Ex Parte Divorce: When Only One Spouse Participates

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"It's time to move on" is a common phrase in many aspects of life. When you don't like your current job or career, for instance, it may be time to move on to something else. The same idea comes up in marriages and divorces, too. Once one or both spouses know the marriage is over, it's common for one or both of them to move before they're actually divorced.

You can get a divorce even if your soon-to-be ex lives in another county or even in another state. An ex parte divorce happens when only one spouse participates in the court proceedings. The divorce will be valid in every other state,but you need to follow certain rules.

Rule1: Meet Residency Requirements

A court's power to decide divorce a case is usually determined by residency or domicile of the person filing a lawsuit. That is, you generally need to file a divorce action in the state or county where you either have a permanent home ("domicile")or where you've been present for the time specified by that state's law ("residence"). The time may be anywhere from six weeks to one year, and maybe longer.

These time periods vary from state to state, and maybe even by county, so make sure you check the laws in your area for more details or talk to a divorce attorney before you file any papers with the court.

Exception to the Normal Rules of "Jurisdiction"

Generally, a state court has authority to decide someone's legal rights in a lawsuit only if that person has some type of relationship or contact with the state, such as living or working there. This is known as the court having jurisdiction over a person.

In divorce actions, however, state courts often take jurisdiction over absent spouses who lack such a relationship with the state. This is the ex parte divorce or status exception to jurisdiction. The state where you establish domicile or residency has the authority to determine your marital status even when it doesn't have jurisdiction over your spouse.

Rule 2: Notice to Spouse

Generally, you need to give your spouse notice of your ex parte divorce action. Personal service of process is when written notice is actually given to your spouse by a "process server,"a local sheriff or some other person authorized by state law to serve notice.

Personal service is the best method, but you may have other options when you don't know your spouse's current whereabouts. Talk to an attorney about your options for service, because if it's not done properly, your divorce won't be valid.

Full Faith and Credit

Courts are legally required to honor a divorce that was obtained in another state.This rule comes from the Full Faith and Credit Clause of the US Constitution. It requires states to recognize and honor the valid laws and court orders of other states.As a general rule, so long as you meet the residency and notice requirements, any court in any state is required to honor your divorce.

When a Divorce Won't Be Honored

Courts aren't required to honor a divorce if the court that granted the divorce didn't have the authority to decide the case in the first place.For example, if a spouse isn't truthful with the court about meeting the state or county's residency requirements and the court granted a divorce, courts in another state or county don't have to recognize the divorce.

Likewise,a court in another state or county may review an ex parte divorce when the absent spouse challenges the divorce. For example, another court may invalidate the divorce if it finds there was fraud or collusion involved in getting the divorce.

Deciding to get a divorce usually isn't an easy or pleasant experience. Actually going through the divorce process can be time consuming and emotionally straining, too, even if your soon-to-be ex doesn't live nearby. You don't want to have to go through the process twice. Make sure you follow the rules, and if you have any questions at all, talk to an attorney as soon as possible.

Questions for Your Attorney

  • Can a court that issues an ex parte divorce decide property and children issues?
  • How can I make sure my spouse gets the proper notice of my divorce action?
  • If my spouse files for divorce in one state, can I file for divorce in my state?
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