Divorce is never easy, and the legal aspects can sometimes make it even more complicated. Different states have different laws and theories regarding different aspects of divorce, such as if a state follows community property or equitable distribution principles. Because of this, one question that frequently arises is whether you can file for divorce in another state other than the one you live in. The short answer is yes, but there are important considerations to keep in mind before taking this route.
What is Jurisdiction?
Jurisdiction refers to a number of things, including the geographical area a court oversees, and the power the court has to hear a case. For a court to hear a case they must have one of the following types of jurisdiction:
Subject Matter Jurisdiction: Certain courts only hear certain types of cases. A bankruptcy court or family law court, for example, would not have subject matter jurisdiction over a criminal case. Only family law courts have subject matter jurisdiction to hear divorce and child custody cases.
Appellate Jurisdiction: Appellate jurisdiction gives appeals courts their ability to review already decided cases. Only appellate courts can review appeals from lower courts. This would be the second step if one side doesn’t agree with the original trial decision
Original Jurisdiction: Opposite of appelate jurisdcition, original jurisdiction gives courts the ability to hear a case first and make an initial decision. Courts with original jurisdiction are the first to hear a case, the evidence, witness statements, and arguments from attorneys.
Geographical Jursidiction: Courts can typically only hear cases in their geographic area. If a car accident happens in Savannah Georgia, but one driver is from California and the other is from texas, only the court in Savannah would have geographical jurisdiction because the accident occured there. For family law cases the issue of geographic jurisdiction is a bit more complicated so keep reading to learn more.
Residency Requirements
The most critical factor in filing for divorce in another state is meeting that state’s residency requirements. Each state has its own rules regarding how long you must live there before you can file for divorce. Some states may require only a few weeks of residency, while others may require six months or more. If you don’t meet the residency requirement in the state you file your divorce in, then your case could be dismissed.
If you want to file for divorce in another state, you must first move there and establish residency before the court has jurisdiction over your divorce case. If you and your spouse have been separated for some time and live in different states, then it may be possible to file for divorce in either state assuming both spouses meet the residency requirements of their respective state.
Why File in Another State?
People often consider filing in another state if they believe that state’s divorce laws will work more in their favor, whether it involves property division, alimony, or child custody. For example, some states have different rules about spousal support or how marital property is divided (community property states vs equitable distribution states).
However, keep in mind that laws governing issues like child custody are typically determined by the child’s home state, not necessarily where you file for divorce. Unless your child moves with you and establishes residency in another state, you may have to file in, and follow the rules of, the state your child was born in or where they last met residency requirements.
Jurisdictional Challenges
Filing in another state can also present jurisdictional challenges, particularly if your spouse doesn’t agree with your choice of location. If your spouse does not have sufficient connections to the state where you’re filing, that court may not have the authority to make decisions on certain matters, like division of assets or child custody.
To ensure you meet the jurisdictional requirements for your county/state, make sure to check on your local county courthouse’s website for the specific rules on jurisdiction.
What to Consider
Before deciding to file in another state, it’s important to consult with an attorney who can assess your situation. Factors like length of residency, the convenience of travel, and the complexity of local divorce laws can significantly impact your case. A seasoned attorney in the state you want to file in can help you learn the local laws, and figure out which state or venue will be best for your specific circumstances.
If you want to file in a county other than the one you and/or your spouse live in, but you meet residency requirements for your state, you may have to file a motion requesting that court to take your case at the same time you file your complaint. You should include your reasons for wanting a different venue in the motion you prepare.
Conclusion: Can I File for Divorce in Another State?
While it may be possible to file for divorce in another state, doing so can add layers of complexity to an already difficult process. Make sure you understand the residency requirements, legal challenges, and potential consequences before making your decision. Consulting a knowledgeable attorney can help ensure you make the best choice for your situation.
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The Family Law attorneys at Koth Gregory & Nieminski understand that your family is the top priority, which is why we offer SAME-DAY APPOINTMENTS. If you need a divorce or other family law services, you can schedule your first meeting through our online appointment calendar. We look forward to meeting you.
Disclaimer: This article (Can I File for Divorce in Another State?) may contain information that is outdated as Illinois law continuously evolves. Meeting with an experienced family law attorney is the best way to ensure you are receiving the most current information answering the question Can I File for Divorce in Another State?
Published by Dustin Koth on February 20, 2025
