Family Law

Where to File for Divorce

Choosing the Best Place to File for Divorce

Furious over Tiger Wood's extramarital affairs, his wife Elin Nordegren is reportedly thinking about divorce. The couple owns homes in California and Florida. That raises the question of where she will file for divorce.

Determining the best place to file for a divorce is important for anyone seeking to end a marriage. Attorneys refer to the issue as selecting the best forum.  Generally, you must file for divorce in the state in which you or your spouse lives. 

When a couple owns homes in different states or they live apart in separate states, they may have the ability to choose the state in which to file for divorce. Where options exist, differences in state laws regarding the time for processing the divorce, alimony, and other factrs should be onsidered in order to slect the state best suited for the divorce filing. 

State Residency Requirements

Most states have laws that require at least one of the spouses to live in the state for a certain length of time before getting a divorce there. The length of time varies from state to state.  Florida, California, and Texas require a spouse to live in the state for six months before filing for a divorce. Iowa, Nebraska, and Maryland have a residency requirement of one year. A two-year residency may be required in New York if the couple was not married there.

Some states have shorter required residency periods. Arizona, Colorado, and Montana require 90 days of residency. Arkansas, Kansas, and Wyoming require 60 days. Nevada is the place to go for a quickie divorce. It has only a six-week residency requirement.

Twenty-two states have laws that allow military personnel stationed in the state to pursue a divorce even though they do not meet the state's general residency requirements. In some cases, service members may be able to choose between filing for divorce in the state where they are stationed and filing in the state of their prior home.

Click here to learn more about the divorce residency requirements in your state.

State Court Power to Determine Divorce Issues

A court's power to end a marriage is separate from its power to decide other issues related to the divorce. Constitutional principles of fairness limit the reach of a court's authority or jurisdiction. This means that even though a state court has the power to grant a divorce to a resident spouse, it might lack the authority to determine property or support issues against a spouse living in another state unless that spouse agrees to have the court handle the divorce.  A court may be able to decide economic issues concerning an out-of-state spouse if that spouse once lived or worked in the court's state or has other connections to the state in which the court is located. 

Issues regarding the ownership of property may have to be decided by a court in the state where the property is located. Also, all states have adopted the Uniform Child Custody Jurisdiction Act. This law may require custody to be determined by a court in the state where the children live or have lived. 

Factors to Consider When Selecting a Divorce State

The following lists some factors that should be considered if selecting the place in which to file for a divorce is an option:

  • Convenience.  It is often easiest to file for a divorce in the closest court
  • Processing time. The length of time for a court to grant a divorce varies from state to state, and court to court
  • Ease of filing. The filing, documentation, and other procedural requirements vary from state to state
  • Child custody. Custody may need to be decided by a court in the state where the children live or have lived
  • Real property.  Property issues may need to be decided by a court in the state where the property is located
  • Property or economic issues. A court may lack the authority to decide property or support issues against a spouse who lives in another state unless that spouse agrees to have the court handle the divorce.
  • Marital fault. In the divorce context, fault refers to marital misconduct like extramarital affairs.  All states allow some form of no fault divorce, meaning that it is not necessary to prove misconduct by a spouse in order to obtain a divorce.  However, some states do consider misconduct when dividing up the couple's property
  • Alimony. State laws differ on whether alimony can be awarded and the length of time that alimony must be paid
  • Prenuptial Agreements. Some states firmly uphold prenuptial agreements unless actual fraud is proven. Other states are more willing to set aside a prenuptial agreement that is unfair to a spouse
  • Increases in value of inherited property. Some states consider the increase in value of inherited property to belong only to the inheriting spouse. Other states treat it like marital property to be divided between the spouses
  • Gifts between spouses. Some states view gifts between spouses as belonging to both spouses. Other states view gifts from a spouse as belonging only to the receiving spouse
  • Professional degrees. Some states view a professional degree or license as the personal achievement of one spouse.  Others consider it to be valuable property of the marriage that is factored into the distribution of property between the spouses
  • Alternative dispute resolution. Instead of having a court decide their divorce issues, couples may prefer the informality, privacy and control in obtaining a divorce through mediation or arbitration. In mediation, a trained person helps the spouses reach a mutual agreement. In arbitration, an arbitrator acts like a judge to hear both sides of the dispute and make a binding decision
  • Counseling. Some states require divorcing couples to attempt reconciliation or attend mandatory counseling sessions

If alternatives exist in the case, it is important to analyze the advantages and disadvantages of filing for divorce in a particular state. Once the divorce process is started it may be difficult, even impossible, to switch to a more beneficial forum.

Questions for Your Attorney

  • My spouse filed for a divorce in another state. Should I file an answer in that state or file my own divorce action here?
  • Where should I go to get a fast divorce so I can get remarried?
  • I own homes in two states.  Where should I file for divorce?
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