Ending a marriage is a complicated process, and when divorce is on the horizon, dozens of questions immediately come to mind: What is going to happen to my stuff? How often will I get to see my kids? Who will get the house? Will I have to pay alimony? — the list goes on and on.
However, before you get to the point of a divorce where these important issues are decided, you must figure out how to begin the dissolution process.
To start a divorce action, one party must file a petition with the court to dissolve the marriage. While that sounds simple enough, you must first determine where the paperwork should be filed.
These provisions vary, ranging from no set residency requirement to 12 months , though most fall around the six-month mark. Additionally, some states also require that you live in a particular county for a certain amount of time as well.
You will be ineligible to file in a state where you do not meet the residency requirements, so you cannot simply pick and choose the easiest state to divorce.
If you and your spouse have been long-time residents of your state and live in the same community, you simply file the petition with your local circuit court. Whoever filed will then serve the papers to their spouse, and the divorce is officially underway.
Establishing jurisdiction when living in another state
However, it is not uncommon for married couples to separate for extended periods of time without officially filing for divorce. During these separation periods, one or both spouses may decide to move to a different state for a variety of reasons, such as finding a new job or staying with family.
Though not exactly a problem, this can cause additional complications if the couple decides they want to formally end their marriage that would not exist if they had continued living in the same state.
If both spouses meet the residency requirement for their respective states, then either jurisdiction can be utilized for the divorce — it will generally just come down to who files first. Still, you should be very careful about which state you decide to have the divorce filed in, as the laws pertaining to the important aspects of the divorce can vary greatly.
Pros and cons of filing in different states
Filing in one state may actually be more advantageous for you than filing in another, so it is important to research the laws of pertinent issues to see whether there is a distinct benefit to filing in one state as opposed to the other.
For example, Missouri (and the majority of states) go by an equitable distribution policy for dividing property, which entails splitting marital assets in “a fair and equitable manner.” However, Texas goes by community property laws, which essentially splits all marital assets down the middle.
Depending on your situation, having the divorce in an equitable distribution state may be more beneficial than divorcing in a community property state — or vice-versa.
It may be advantageous to either quickly file for divorce first, or wait for your spouse to file depending on your unique situation and the state laws involved. Additionally, whoever lives in the state outside of where the divorce is occurring will likely need to factor in travel expenses to make it to hearings.
After either you or your spouse files and the jurisdiction is determined, the rest of the process is the same as if you were in the same state: The divorce will start moving along after the spouse who filed officially serves the other party.
Consult an attorney before you file
While it is entirely possible to get through a divorce without retaining an attorney, particularly if you have few assets, no children, a short marriage and are on good terms with your spouse, it is still a good idea to at least consult with a lawyer before filing anything with the courts.
At a consultation, you are able to clarify aspects of the divorce process (very helpful if you have questions about the jurisdiction or what happens next), receive legal advice pertaining to your unique situation, go over specific details regarding the various aspects of your divorce and ask questions about what lies ahead.
Meeting with an attorney is critically important if you have many assets to divide, have children, an uncooperative spouse or your spouse hires her own attorney — it is much easier to achieve a fair deal in the initial divorce than to go through the process of modifying the agreement later.
Additionally, if you are divorcing in a different state than where you reside, an attorney will be able to take care of a lot of issues for you so that you do not need to be there in person as often.
Divorce is a complex process, and determining where to file the initial divorce petition is just the first step. Once you have that part figured out, you are ready to embark on the long and difficult course of dissolving your marriage.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”