What Are Divorce Residency Requirements (and Why Residency Matters for Divorce)

It’s strange but true that the state you live in plays an important role in how your marital estate is divided during your divorce. Living in one state versus another could mean you walk away with a lot more… or a lot less. That’s why it’s so important to understand divorce residency requirements before you begin your divorce process. 

You’ll also want to know how your state residency will impact your divorce, especially since we live in an increasingly mobile society. In this article, we’ll look at how residency works and what your state of residence means for your divorce outcome.

Why Residency Matters

Before we break down divorce residency requirements, it’s helpful to understand how different states have different rules when it comes to dividing a marital estate. If you live in a Community Property State, such as California, Texas, Arizona, or Washington, the couple’s entire marital estate (everything accumulated while the couple was married) will be divided down the middle. This legal concept tends to be beneficial to women who are more likely to be the lower earners in the relationship. The majority of states use a different standard called Equitable Distribution. In those states, a judge has the ability to divide assets in a manner deemed “equitable.”

What exactly is equitable? Good question. The term is subjective and up to the judge to determine. Spouses are awarded a percentage of the value of the marital estate. The judge determines what that percentage is. The higher-earning spouse usually gets a larger percentage.

You can see how your state of residency might make a pretty significant difference to your wallet after your divorce, especially if you are the lower-earning spouse.

What Defines Residency?

In this day and age, it’s not uncommon for married couples to regularly move or even for one spouse to spend a significant period of time in multiple states. For example, your spouse may live in Maryland but stay in New York for long stretches of time for work. Or, you may have separated from your spouse and moved back to your hometown in a different state. Many military couples move every few years. 

How to Determine Your State of Residency for Divorce

Every state has its own way of determining residency. In most states, you can establish residency by living in the state for between six months and a year, depending on the state. That means you can’t move to a community property state for one month and then file for divorce in that state.

Certain states require you to establish a “domicile” in order to achieve residency. To be domiciled in a state means that you have a fixed, permanent home in that state. This is often the place where you vote, bank, go to work, and where your children attend school.

If you separate from your spouse and move back in with your parents in another state, you may not be able to establish residency in the new state if you still pay a mortgage and vote in the old state.

Divorce Residency Requirements

If you are considering a divorce and aren’t sure of your state residency, research the specific requirements of your state. Some states have more challenging requirements than others. It may also be a good idea to schedule a consultation with a knowledgeable divorce attorney who can help you determine whether you meet your state’s residency requirements. 

If you are seeking to gain residency in your state, a good place to begin is to start establishing your documentation. Proof of residency can include things like

• Driver’s license
• State ID card
• Tax returns
• Vehicle registration
• Voter registration
• Employment and housing verification
• Banking statements

If you have recently moved, you may not qualify for residency in your current state and may actually be a resident of your previous state.  Again, an experienced divorce attorney can help you with the nitty-gritty of the residency rules of your state. 

Legal Separation Before Residency

If you don’t yet qualify as a legal resident in your desired state, you may be able to pursue a legal separation rather than a divorce. During the length of the legal separation, you can take action to establish your residency in the state. Keep in mind that a legal separation is not for the faint of heart. Many of the steps of a legal separation mirror the steps of a divorce, including dividing your property, potentially paying spousal support, determining child custody, and establishing child support if necessary. 

Living in a Different State Than Your Spouse

What happens if you and your spouse separate and you move to a different state? Can you establish residency and then pursue a divorce under the divorce laws of that state? If you happen to be the lower-earning spouse, it could be in your financial interest to move from an equitable distribution state to a community property state, for example. 

While moving states to better position yourself in your divorce settlement may seem like a canny legal move on the surface, it’s not as easy as it seems. For one, moving may entail leaving your job and social connections, uprooting your children, and coming up with the money to rent or buy a home in your new state. Second, states have different rules regarding divorcing a spouse who doesn’t also live in that state. This has to do with a legal concept known as “personal jurisdiction,” or the state’s right to issue orders (such as dividing marital property) against someone who doesn’t have residency in the state.

These issues can be incredibly tricky, and your spouse may be able to resist a divorce filed in a state where they are not a resident. This is why, in most cases, “state shopping” for your divorce isn’t a good idea, especially if your spouse isn’t on board. 

Get a Divorce Lawyer

As you can tell from this article, residency requirements for divorce can be tricky, especially when you add child custody into the equation or if one or both spouses are in the military. Since every state’s laws are a little different, it’s best to work with a knowledgeable divorce attorney before filing for divorce to determine whether you can use residency rules to your advantage in negotiating your divorce settlement.

You can also get great information on divorce by attending a local Second Saturday Divorce Workshop in your community.