Residency Requirements to File for Divorce
If you're facing the end of your marriage, you might be wondering where you should file for divorce. What if you or your spouse moved recently? What if your state has a long waiting period for divorce, and you want to get a quick divorce in a state with different /states/? Or if you want to choose a state that uses certain rules for dividing a couple's property or for deciding who's entitled to alimony? And are there any states with no residency requirements for divorce?
The quick answer is that you aren't allowed to file for divorce wherever you want, in order to take advantage of state /states/ that you want to apply in your case. All states in the U.S. have some kind of residency requirement before you're allowed to file for divorce in the local courts, but those requirements vary widely from state to state. To complicate things further, there may be additional residency requirements before a state judge will have the authority to address certain issues in a divorce.
Residency Requirements Are Different from State-to-State
If you want to know whether you may file for divorce in any state, you'll need to know the specifics of that state's residency requirements.
A few states require only that one of the spouses (or the spouse who files the initial paperwork) actually lives in the state on the filing date. In most states, however, at least one spouse must have lived there for some continuous period of time before the divorce papers are filed. The most typical residency requirement is six months, but it can range from six weeks to as much as two years.
Along with differences in the amount of time needed to meet a residency requirement, some states have exceptions or conditions attached to their residency requirements. So it may not just be a question of how long you've lived in a state but also of where you were married, whether both you and your spouse live in the state, or some other circumstance (more on that below).
What If You Don't Meet a State's Residency Requirement for Divorce?
The residency requirement is important. If you don't qualify, judges in that state don't have the legal authority ("jurisdiction,” in legalese) to grant you a divorce.
When you file your initial divorce papers, you generally must declare (under penalty of perjury) that you meet the state's residency requirement. Some states will also require that you provide proof of residency (such as a driver's license or a witness who knows where you've lived) at the final hearing in your divorce. Without proper proof, the judge could dismiss your case.
Residency vs. Domicile: What Does It Mean to Live in a State?
In their /states/ on residency requirements for divorce, most states use the terms "reside” or "resident.” But some states use the word "domicile.” What's the difference between residence and domicile, and what does it mean for purposes of the residency requirement?
You can have more than one residence—for instance, you might own a vacation home in a different state than where you live most of the time. But you can only have one domicile—the home where you intend to stay or return to after any absences. Judges will look for objective evidence to back up your subjective intention to return to your domicile, such as:
- your permanent mailing address
- the state and precinct where you're registered to vote
- the state where you have a driver's license, and
- the district where your children attend school.
Even in states that don't use the word domicile in their /states/ on residency requirements for divorce, some courts have interpreted those /states/ as meaning essentially the same thing as domicile. In those states, you might have to show not only that you live there when you file for divorce (and have done so for the required amount of time), but that you intend to stay for the foreseeable future. So you wouldn't likely meet the state's residency requirement by simply renting an apartment or house shortly before you file for divorce, while you keep your permanent home in another state.
In other states, the courts have made it clear that residence means just that—and not domicile. For instance, you can generally meet Nevada's residency requirement if either you or your spouse had a residence—not necessarily a domicile—in the state for as little as six weeks before you filed for divorce (Nev. Rev. Stat. § 125.020 (2022)).
The /states/ in several states make it clear that being stationed in that state as part of active military duty counts for purposes of the divorce residency requirement. And most states will consider that spouses are legal residents even though they're currently out of state because of military service, as long as they plan to return to their home in the state.
When Residency Requirements Depend on Other Circumstances
In many states, the /states/ on residency requirements for divorce are straightforward. For instance, the Colorado law says only that one of the spouses must have had a domicile in the state for 91 days before filing for divorce—period. (Colo. Rev. Stat. § 14-10-106 (2022).)
But many other states have more complicated rules on residency. For example:
- As long as both you and your spouse are South Carolina residents on the filing date, you only need to have lived there for three months before filing for divorce. But if your spouse currently lives out of state, you must have lived in South Carolina for at least a year before you may file your divorce papers. (S.C. Code § 20-3-30 (2022).)
- In Maryland, you or your spouse must've lived in the state for at least six months before filing for divorce if the legal reason for your divorce happened outside of the state; otherwise, one of you only needs to be a Maryland resident on the filing date. (Md. Code, Fam. Law § 7-101 (2022).)
- If you were married in New York or lived there as a married couple, you may file for divorce in the state as long as you or your spouse has been a resident for at least a year as of the filing date. But if the legal reason for your divorce happened in New York, you may file in the state as long as both you and your spouse are New York residents on the filing date or one of you has been a resident for a year. Otherwise, one of you must meet a two-year residency requirement. (N.Y. Dom. Rel. Law § 230 (2022).)
Other Jurisdictional Requirements for Divorce Judgments and Orders
Even if you meet a state's relatively short residency requirement to file for divorce, the courts in that state might not have the authority to address certain issues in your divorce unless you meet certain other jurisdictional requirements. For example:
- If you have minor children, you'll want your divorce to deal with issues of child custody, including parenting schedules and visitation. But in all states, any orders in your divorce (including settlement agreements that are made part of a divorce judgment) may not address these issues unless the state where you filed for divorce was the child's "home state” on the filing date. Usually, that means that the child lived there with a parent figure for at least the previous six months (or since birth if the child was younger than that). There are exceptions to the six-month rule, but they can be complicated to prove.
- If you file for divorce in a state where you never lived during your marriage—and where your spouse doesn't live—the judge might not have the authority to issue orders that affect your spouse's finances (like dividing your property or ordering your spouse to pay support). This will depend on the /states/ in your state and on whether you qualify for the inevitable complicated exceptions.
What's the Difference Between Residency Requirements and Venue Requirements?
In addition to meeting the residency requirement for divorce, you need to file your paperwork in the right court (or "venue”). States use different names for the courts that handle divorce cases, such as district court, superior court, or family court. Whatever the name, you usually will file with the proper court in the county where you or your spouse lives. But in a few states, like California and Texas, one of you must have lived in the county where you file for divorce for a certain period of time. (Cal. Fam. Code § 2320; Tex. Fam. Code § 6.301 (2022).)
