Residence and Domicile Requirements in Divorce
One of the things that can make divorce difficult is understanding where you can file your papers and what court will have jurisdiction over your case. You can’t, after all, file for divorce from just anywhere. Some states may have divorce laws that seem more favorable to your case, but that doesn’t mean you can file there; after all, the courts don’t want people “forum shopping” for locations that might be most desirable. Furthermore, filing for divorce in a state other than where you or your spouse live would be a logistical nightmare, requiring lots of travel and added expense.
Before you can file for divorce in any state, you have to satisfy a threshold legal requirement by proving that you or your spouse have residence or domicile in that state. There are only a small handful of states in America that don’t have a residency or domicile requirement, while the vast majority have very specific residency and domicile laws that you'll have to follow.
What Is “Residence?”
Having residency in a state simply means that you or your spouse have been present there for a set period of time, as required by that state’s laws. Every state has a different residency requirement. Some states require residency for as little as 60 days, while in others, you need to have lived in the state for up to 180 days.
What Is “Domicile?”
“Domicile” is a more complicated and burdensome standard to meet than mere residency. Whereas residency only requires you or your spouse to be present in a state, domicile means that you or your spouse must have a single, permanent home in the state where you’re filing for divorce. To decide whether a spouse has established a domicile, courts look at factors including:
- where the spouse votes
- where the spouse is employed
- where the spouse banks
- where, the children, if any, attend school
- where the spouse’s car is registered
- where the spouse’s extended family lives, and
- what state issued the spouse’s driver’s license.
Domicile is a tougher burden to meet than residency, but even if you can’t establish domicile, you’ll probably still be able to file for divorce after you meet the state’s residency requirements. Domicile is more relevant when it comes to issues like state income tax, probate matters, and estate taxes.
Putting the Pieces Together
To get divorced, you or your spouse (or both of you) need to file the required papers in the state where one or both of you can establish residency or domicile. You can’t file in a state where you have no real legal or monetary connection.
To put it simply: if you want to file for divorce in State X, you have to live there first. If you and your spouse lived in State X and then your spouse left and moved to State Y, you can still file for divorce in State X. Likewise, you can move to State Y and file for divorce there, but not until you’ve met State Y’s residency or domicile requirements.
For example, if you and your spouse live in Colorado but you want to move to Florida and file for divorce there, you can do that after you satisfy Florida’s residency requirement by living in Florida for six months before filing.
If child custody is an issue in your divorce, it’s very important to remember that those issues must be resolved by a court in the child’s home state. If you and your children reside in one state, and your spouse lives in another, it’s best for you to file in your current home state, where you and your children already have residency. If you and the children move to another state, then you can file once you’ve established residency in the new state and it becomes your children’s “home state.” There is a very complex body of law surrounding these kinds of issues, and if you have any questions, be sure to consult with an experienced family law attorney.