Can I file in my home state if our divorce is stalled in his state?
Divorce proceedings are usually done according to guidelines established by state courts. These guidelines vary slightly from state to state. When the spouses don’t live in the same state anymore, it can be complicated to get a divorce. There are certain situations in which spouses move to other states immediately after the separation of the couple. Other situations arise where spouses have been living in different states for several years. Regardless of the exact circumstances, spouses who live in separate states are still able to get a divorce.
You might think that you have to travel all the way back to whatever state issued the marriage license. However, that isn’t the case. The divorce proceedings must be filed in a state where either you or your spouse resides. This means that you meet the state’s residency requirements. Courts won’t hear a divorce case until at least one of the spouses can meet the requirement. The requirements vary from state to state. You’ll need to have lived in the state for a certain period of time before you can receive a divorce there. Several states impose an additional requirement in which a person must have lived in their county for a certain amount of time.
Some states don’t have any residency requirement. You should become familiar with the requirements of the state in which you reside. It’s important that you can provide evidence demonstrating that either you or your spouse has met the residency requirements. The court should be presented with a voter registration card, driver’s license, or dated lease. If either of you has just moved into a new state, you cannot become divorced until one of you meets the residency requirements of your state of residence.
Choice of Law
There are a number of circumstances that might affect whether you decide to file your divorce papers in your own state or your spouse’s. In the case of this question, you want to file in your home state because your divorce proceedings are stalled in another state. You should be certain that you meet the residency requirement in your home state.
Some divorce cases are straightforward. If your spouse and you are both agreeable to the divorce’s material terms, it might not matter which state you file in. Different states have slightly different rules regarding how they approach divorce-related issues, though. If property division, child custody, child support, or alimony are potential factors, you should become familiar with the state laws in your home state.
When you file in your home court, there may be a lack of jurisdiction over your spouse. But even when this is the case, the court is still powerful enough to grant your divorce. Courts have presiding jurisdiction over the actual marriage, regardless of whether both spouses are within the court’s jurisdiction as individuals.
There might not be jurisdiction over your spouse if they haven’t contacted your state in any meaningful way. In addition, courts are not able to make property decisions if the property is located in a different state. Depending on the circumstances, your home court might not be able to make a judgment about child custody.
If you’re starting a new divorce proceeding after your other one has stalled, your spouse must be provided with some form of notice. It’s important to be sure that the spouse has received your petition for divorce. The best way to do this is by having them officially “served” the papers. A sheriff, process server, or other individual with court qualifications will personally deliver the documentation to your spouse.
There are other potential options available. You might mail the documents through a certified mail carrier or publish your divorce papers in a publication for some time. You should talk to your family law attorney about the best way to approach your case’s unique circumstances. Papers must be properly served, or the divorce may be considered invalid.
Faith and Credit
The United States Constitution has a provision called the Full Faith and Credit Clause. This requires a court to honor divorces that have been granted throughout other states. In certain circumstances, a state might not honor or recognize a divorce.
If your spouse was not properly notified about the proceedings, your state won’t recognize the divorce. In addition, if the court was never given the jurisdictional authority to judge the case, the divorce might not be honored. Failing to meet the residency requirement is an example of this.