Many people who are not family law lawyers don’t know that, if they want to file their own divorce paperwork with a court, they must file it in the county where either the husband or wife resides. Furthermore, when I say county, I mean the county in the state where the husband and wife live. Finally, there can be complications when one spouse lives in an entirely different state. If this is the case, one of the spouses must establish permanent residency or “domicile” in order to be able to file a divorce in that state.
I know, it’s complicated.
Talking to a good lawyer will save you a lot of time and hassle with the divorce filing process. There are many issues to consider, including service of legal process, which I talked about in a prior post.
How do I determine my residency or domicile?
In terms of the proper county, as I stated, you must file the divorce paperwork in the county where you live. Taking a look at an example of a particular state’s law on the subject can be most helpful. For example, one state provides in its divorce law that:
No divorce can be granted unless: (1) either the husband or the wife has resided in the state, or either of them has been a member of the armed services in the state, for at least 180 days before the filing if the divorce pleadings; or (2) either the husband or the wife has lived in and qualified as a domiciliary of the state for at least 180 days before the filing of the divorce pleadings in court.
The law above is typical of many state’s divorce filing statutes. Caution: the law in each individual state varies on the timing and number of days of residency required before a divorce can be filed. You should check with a local family law lawyer in the law in your state. In the case above, this state only requires 180 days of residency, domicile, or being a member of the armed services.
If I don’t meet those qualifications, what should I do?
Many people ask me what they should do if they don’t live in the same state as their spouse. Or, perhaps they don’t know if they meet the number of days living in state requirement. It is very difficult to know the laws of every state. Lawyers are typically only licensed to practice law in one or only a couple of states. Thus, they know the law in the states they are licensed in. It would be very difficult for a person who is not a lawyer to know the different rules, deadlines, and residency requirements for filing a divorce.
If you don’t meet the 180 day qualification as listed above, my general advise to clients is “you have to wait until you meet the deadline.” It is really that simple.
Why does it matter where I file the divorce paperwork?
It matters where you file the divorce paperwork because the laws of each state and, to some extent, the rules of each county vary. For instance, some states allow long-term spousal maintenance or alimony while another state will not. Obviously, this can have a big effect on a divorce. One spouse could either pay or receive far less money depending on what state the divorce is filed in.
Furthermore, the laws on child support tend to vary from state-to-state. Most states have some kind of formula for determining child support. It is often based on gross income, minus child-related expenses like insurance, day-care, etc. However, there are slight nuances in every state that must be learned and only a good family law lawyer will know them.
Finally, there are may different areas of divorce law that can change from state-to-state and, on a smaller scale, from county-to-county. The first step in putting yourself in the best position is talking to a highly qualified family law lawyer in you community.
This post was written by Joseph M. Flanders, an Dakota County MN divorce lawyer.
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