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Does Divorce Have To Be Filed In The Same State As The Marriage?

Does Divorce Have To Be Filed In The Same State As The Marriage?

Have you decided to get a divorce? You may have thought this was the beginning of the end of the tough decisions you will need to face, but there are many more decisions and processes that will need to be navigated as you start on your path to a new chapter in your life. The first question you will probably face after deciding on divorce is, where do I actually file for divorce? If you were married in another state, you may be wondering if you have to go back to that state to get a divorce. Most all states have residency requirements for divorce filers. We will discuss more on where you can file for divorce here.

The road to divorce is not always straightforward. Some spouses decide to separate while still living together, but others will enter divorce proceedings after years of living apart—sometimes after one spouse has moved to a different state. Divorces involving spouses living in different states are often more complicated than those filed by spouses who live in the same community.

Do I Have To File For Divorce In The Same State I Got Married?

In order to be able to grant a divorce, a state court must have jurisdiction over the divorce proceedings. Jurisdiction means that the court has the power to rule over the procedures as well as decide the outcome of the case. This is why, in most cases, a person will petition for divorce in the state where he or she lives. Depending on how long he or she has lived in that state, it is most common that the court will have jurisdiction over a state resident to hear his or her divorce case.

Prior to filing for divorce, you should verify your state’s residency requirements. You should also check on the local county residency requirements. Do so promptly. If your spouse lives in another state, he or she may be looking to file for divorce there. Having a pending divorce case out of state can be logistically difficult and very inconvenient. You may also, however, want to investigate the state’s laws on divorce to see which is most favorable to your situation.

To file for divorce, you must meet the state’s residency requirements. There are a few different ways to meet the residency requirements. If you or your spouse has been living in Utah continuously for a minimum of two years prior to the initiating of the divorce case, then you will meet the residency requirements. Alternately, if you or your spouse has been living in Utah continuously for a minimum of one year prior to the initiating of the divorce case and you either got married in Utah, lived in Utah as a married couple, or the grounds for divorce occurred in Utah, then you will meet the residency requirements. Lastly, you can meet the residency requirements if both you and your spouse are residents of Utah the day the divorce is initiated and the grounds for your divorce occurred in Utah.

How to Determine Which Court Has Jurisdiction Over Your Divorce

Couples can only file for a divorce in the state and county that has jurisdiction to hear the case. However, you do not necessarily have to file in the state that issued your marriage license or even the one in which you currently live. The jurisdiction for your divorce case will depend on both spouses’ locations and how long each one has lived there.

While the divorce process is much the same in every state, the specific rules and requirements vary depending on the jurisdiction. For example, you may be compelled to file your divorce in a specific state if:

You do not meet residency requirements.

Each state has a minimum length of time that a spouse must live there before he or she can get a divorce in the state. Usually, only one spouse will need to meet the residency requirement, and that spouse will have to file the paperwork for the divorce to be heard. If you move to Utah and do not meet the residency requirement, you may only be eligible to file in the state where you and your spouse cohabitated.

Your spouse is first to file.

If two different states are eligible to have jurisdiction over a marriage, the state that takes jurisdiction will be the state where a divorce petition is first filed. This could give the filing spouse an advantage in a contested divorce, since he or she will not have to travel as far to participate in hearings and the trial. The out-of-state spouse may also have to hire an attorney in the state where the divorce is pending instead of using an attorney from his or her home state.

Your children live in another state.

If your children attend school in the state where your spouse lives and your spouse meets residency requirements, filing in your spouse’s state may be less stressful for the children. However, you should understand the state’s requirements regarding child support, child custody agreements, and spousal support.

How to File for Divorce When Spouses Reside in Different States

While it is fairly common for someone to move to a different state once they separate from their spouse, doing so can present potential difficulties when formally filing for divorce and reaching final resolutions. All states require that the spouse who files for divorce be a resident of the state in which they file their divorce petition.

The amount of time required for establishing residency varies from state to state, but generally ranges from six months to one year. Residency can be defined as having a physical presence as well as the intent to remain indefinitely in that state. You are allowed to work outside of the state while establishing residency, as long as you are actually living in the state in which you are trying to establish residency.

If you and your spouse are now residing in separate states, then each of you maintains the right to file for a divorce in your current home states. As a matter of convenience, it may be best to file in your state before your spouse files in theirs; you may be required to travel there for divorce proceedings, as well as to arrange and change child support and custody orders, and property settlement agreements.

Divorce Process

Once a divorce has been officially filed and your out-of-state spouse has been properly notified, the actual divorce proceedings will be similar to if both of you lived in the same state.

Your divorce petition will be served to your out-of-state spouse, who will then have the opportunity to legally respond to the petition. The odds are that your spouse in another state will hire an attorney within the state that the divorce was filed because this will provide them with the best opportunity to contest the divorce.

The out-of-state spouse will also have to handle their own travel expenses to your local courthouse if they are trying to participate in hearings and a potential trial.

Differences in State Laws

If your divorce case is rather straightforward and both spouses have a mutual agreement for the overall material terms of the divorce, then it may not matter too much in terms of which state the filing occurred. However, state laws can make a big difference in a divorce proceeding in terms of some common issues, including child custody, spousal support, child support and the division of property. All states will have different child support formulas that determine how much one spouse will pay another. Also it’s important to know that there are some states that consider marital property as community property, which means the property will be split 50/50 automatically, whereas many other states will utilize an approach that pushes for equitable distribution.

Full Faith and Credit

The Full Faith and Credit Clause within the Constitution asserts that courts must honor any divorce proceeding that is granted within another state because states must always honor any court orders that come from other states. But you must abide by all of the above stipulations in order for a different state to honor your divorce petition!

What Do I Need to Do to File for Divorce If My Spouse Lives in a Different State?

As previously mentioned, the first step will be to check your individual state’s divorce residency requirements.

You can file for divorce in a state other than the state in which you are married, as long as you meet residency requirements. If you do not meet the residency requirements for the state in which you are attempting to file for divorce, your divorce complaint can be rejected.

If both spouses file for divorce at the same time, which is referred to as concurrent filing, the general rule is that whichever petition is filed and served first will proceed to court. Therefore, if you wish to file in a state that is more favorable to you in the divorce, you should file as soon as possible to avoid the issue. Once you file, then make sure that your serve the papers to your spouse, which means that they are in-person (or as close as possible) notified about the divorce and have the papers for the divorce process in their hands. The actual divorce process will vary according to the state in which the divorce was filed, as well as property issues and child custody. Both parties must participate in all steps of the divorce process, and if any of the requirements for a legal divorce are not met, the validity of the divorce status could be affected. However, the process is typically the same once the initial petition for divorce has been filed by either spouse in the state in which they reside:


The other spouse must be notified or served with the divorce papers; they then have twenty to thirty days to respond to the complaint. If they fail to do so, a judge will generally grant the petition. If the spouse cannot be located, such as if they moved to a different state without notifying anyone of their whereabouts, they may still be notified through “service by publication.” An example of this would be placing a notification in the newspaper.

Temporary or Preliminary Hearing:

This initial meeting is for the spouses, their attorneys, and the judge. A preliminary hearing is meant to resolve matters that need to be addressed immediately, which cannot wait until the actual trial. Examples of this include requesting temporary child support or custody, requesting exclusive use of the marital residence, and requesting instructions regarding insurance.

Negotiations, Mediation, and Agreements:

At this point the parties may attempt to solve their differences through negotiations, mediation, or other forms of alternative dispute resolution such as early neutral evaluation.


Issues not addressed through negotiation must be addressed through trial. Each side presents their arguments as well as evidence in support of their requests. Trial is not always required, if the parties are amicable and are able to come to an agreement through mediation alone.

Post-Trial Issues:

Ideally, all issues will be settled during trial. However, additional legal issues may present themselves after the trial. Appeals and child custody adjustment are some common examples.

The Pros and Cons of Filing for Divorce in a Different State

Because each state has different laws regarding divorce and community property rules, it may be more advantageous to file for divorce in one state, as opposed to the other. Some common issues to consider include:

Does the state allow for a no fault divorce?

All states allow for some form of a no fault divorce, which are generally smoother cases. No fault divorces are essentially those in which the couple claims “irreconcilable differences” as the reason for divorce. However, some states still allow a spouse to allege that the divorce resulted from some fault of the other spouse. In such cases, the spouse’s misconduct may cause the court to award higher alimony payments, a larger share of marital property, etc.

How does the state handle the distribution of property?

Each state’s laws determine whether they follow community property distribution, or equitable distribution of marital property. In community property states, the marital property is divided evenly. In equitable distribution states, the marital property is divided in a way that is fair and appropriate. Once again, it is possible to file for divorce in a community property state even if the marriage is in an equitable distribution state; the only determining factor is residency.

How does the state handle child support and alimony?

Every state applies their own formula when calculating child support and alimony payments. Some states are stricter, whereas others are more lenient. As logistics are concerned, it may be more practical to file in your own state as opposed to letting the out of state spouse file for divorce. However, the out of state spouse may live in a community property state, which may be more advantageous. It is a good idea to do your research and decide which works best for you.

Should I Hire an Attorney When Filing for Divorce from a Spouse Living in a Different State?

The factors of your specific case will determine whether or not you should hire an attorney to handle your out of state divorce. A skilled and knowledgeable divorce lawyer can help educate you on your state’s residency requirements, as well as advise you in regards to which is the best state in which to file for divorce.

Additionally, they will assist you fulfilling procedural requirements, and represent your interests in court while reaching a fair resolution. Couples will always break up in unique ways, but typically there will be a point in which a married couple will separate and live apart prior to completing their divorce settlement. When a separated couple lives in different states, the divorce settlement process can become somewhat more complicated.

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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506