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When you leave for vacation to another state, you don’t worry about whether your driver’s license is valid in the state you’re heading to, right? You know your valid license gives you driving privileges in every other state. You may not have thought about it in this way, but the same idea works with a divorce
So long as certain rules were followed in getting a divorce,?the courts in every other state will honor the divorce, either because the?US Constitution?requires them to honor, or because of a legal?principle known as?”comity.”
The Basic Rules
No matter which state the marriage took place in,?a spouse can get a divorce in another state.?In order for the divorce to be valid, however,?two things have to happen:
- The spouse who filed for divorce has to meet?the?residence or domicile requirements?in the state where divorce action was filed
- The other spouse was given notice about the divorce action – you can’t get a divorce without telling your soon-to-ex that you’re suing for divorce
When those two items are met, a court’s final decree of divorce will be honored by?the courts of?every other state.
Full Faith and Credit
The Full Faith and Credit Clause?of the US Constitution?requires each state to honor the public acts, records and judicial proceedings of every other state. So long as the court follows the?laws and constitutional requirements of its state,?and so long as the decree doesn’t violate the laws or public policies of other states, the decree?must be recognized and enforced in every other state.
For example, a state that doesn’t recognize?same-sex marriages isn’t required to give full faith and credit to such marriages, even if the marriages are legal in another state.
Even if the Full Faith and Credit Clause doesn’t?apply to a divorce case, a state court may honor the?divorce as a matter of comity. Comity is where a court recognizes another?court’s order or judgment?as a matter of courtesy, even though the court isn’t legally required to do so.
Comity is used most commonly used when it comes to divorces granted in foreign countries. US state courts often honor divorces granted in foreign countries.
Comity may come into play between state courts, too, however. For example, a state that doesn’t allow for?same-sex marriages?may honor and enforce?a same-sex divorce decree from another?state. Likewise, the same court may, out of comity, recognize the marriage?so that it can?enter a divorce decree and end the same-sex marriage.
It’s up to the court to decide if a decree will be honored out of comity. A decree given recognition as a matter of comity can have the same effect as one given full faith and credit.
Challenging a Divorce Decree in Second State
You may challenge a divorce decree in?your state if?you think that the court that granted the divorce?didn’t?have the authority to do so. For example, you may think your spouse didn’t meet the residency or notice requirements when the divorce was granted. In such a case, it’s up to you to prove?your right to challenge the judgment and why the court’s decree in invalid.
What Happens if You Win?
The decree will be denied full faith and credit and will also lose all validity in the state that granted the divorce if you’re challenge to the decree is successful. In effect, this means there was no divorce, and you and your spouse are still married. Neither of you can legally remarry (that would be bigamy). And, one or both of you will?have to?start the divorce process all over again.
When You Can’t Challenge Another Court’s Decree
You can’t?attack a divorce decree from another state if the following are true:
- You were?subject to the jurisdiction of the court that granted the divorce because you?received the divorce documents, but failed to bring up the issue of the court’s authority over the case
- You agreed to the?jurisdiction of the court that granted the divorce decree by showing up for court, signing an affidavit for receipt of the divorce papers or acknowledging receipt of the divorce documents by filling them in, and you didn’t?attempt to challenge that court’s authority to decide the case while it was pending
- You used?the divorce decree to your own?benefit, such as using it for legal authority to get married again
If none of the above are true, a court will look to see if the spouse?challenging?the divorce decree was actually given notice of the pending divorce and whether there was any excuse for not raising the dispute prior to the granting of the divorce decree.
In the end, a divorce granted by any state is valid and enforceable in other states, so long as everything is done properly.
Questions for Your Attorney
- How long do I have to live in my state before I can file for divorce?
- I didn’t receive notice of the divorce hearing that was held in a state other then where I live. Is the divorce decree valid? Do I have to go to that state and challenge the decree?
- I got divorced and then married someone else. My ex-spouse had the divorce decree invalidated in another state. Is my second marriage valid? Do I need to get a divorce in my first marriage and then remarry my second wife?