You might think that a couple must divorce in the state they got married in, but the law says otherwise. Instead, each state sets certain residency requirements that must be met before the courts in their state will assume jurisdiction over a case. If a person meets the requirements, then the court can hear the case and issue a divorce decree. So, yes, it is possible for your spouse to file for divorce after moving to a different state.
Learn the State’s Residency Requirements
In Colorado, one spouse must have lived in the state for a minimum of 90 days before petitioning the court to divorce. This is not a great length of time. The law also allows either spouse to meet the residency requirements, not solely the spouse who files for dissolution of marriage. So a husband can move to Colorado from California, and 90 days later his wife can file for divorce in Colorado even though she is still living in California.
To meet the requirement, a person must be “domiciled” in Colorado for 90 days. Domicile is a legal concept that basically means the person has made their home there and intends to stay. Someone visiting Colorado for 3 months is not domiciled here, and someone who intends to move back to a different state is also not domiciled.
If you live in Colorado and your spouse has moved, you should learn what the requirements are in his or her new home state. For example, in Florida, one spouse must have been a resident in the state for at least 6 months before filing for dissolution of marriage.
Child Custody when a Spouse Has Moved Out of State
A federal law, called the Uniform Child Custody Jurisdiction and Enforcement Act, might prevent another state’s court from deciding custody. This law states that courts in a child’s “home state” have exclusive (and continuing) jurisdiction to decide child custody issues. The law defines home state as the state where the child has lived for 6 continuous months before the petition to dissolve a marriage was filed.
So if your husband moves to Florida and files for divorce there, but the children have been with you in Colorado for the 6 months before he files, then the Florida court will not decide child custody. If your child has not lived in any state for at least 6 months before the court action was filed, then a court looks at which state the child has “significant connections” and substantial evidence of care for the child.
The Advantage of Filing First
If your spouse is the first person to the courthouse, you might find yourself travelling to another state to attend court hearings. This can be expensive and time-consuming. Also, if you miss a hearing, then something could be decided without your presence or input, which is far from ideal. By filing first, the court in Colorado can take exclusive jurisdiction over the entire divorce case.
If you are asking, “can my spouse file for divorce in a different state?”, the legal team at Divorce Matters can help you. Contact us today to schedule a consultation.