The laws surrounding divorce are handled at the state level. It doesn’t matter where you and your spouse married, what matters is where you live at the time you decide to file for divorce. It’s often a stressful time, even if you and your spouse agree that it’s time to end the marriage. Don’t complicate it by assuming you understand the process for your state.
The Rules are Different for Every State
The laws surrounding divorce are handled at the state level, so while there are similarities from one state to the next, there are differences to be aware of, too. Even if you decide to file your own divorce without a lawyer, you still need to adhere to your state’s laws about how to file the divorce with the court, how to notify your spouse the paperwork is filed, how long your spouse has to respond, and so on. Survive Divorce is an excellent resource for determining what the laws are in your state.
You or Your Spouse Has to Have Residency in the State Where the Divorce is Filed
The one thing that is consistent about divorce in the United States is the fact that you must live in the state where you file your divorce. If you or your spouse move to another state as a result of separating, you may have to wait additional time before you can file because you must also be a resident of the state before you can file. In most cases, this means you cannot move to a new state and file for your divorce under those state’s rules the next day. In Colorado, that residency requirement is 90 days, and in California, it’s 60 days.
You May or May Not Have to Live Separately Before You Can File
In some states, such as Alabama, Arkansas, North Carolina, South Carolina, Virginia, and a few others, you must live in separate homes for a period of time before you file for divorce. The amount of time you have to live separately varies depending on the state you live in. In North and South Carolina, you must live apart for a year before you’re eligible to file. In Illinois, you must be separated for six months. Some states require a year if you have children, and six months if you do not.
In other states, you may be able to divorce while you are living together, but you may also have to testify to the court that the two of you are living in separate bedrooms and no longer engaging in sexual activity.
And there are plenty of issues regarding dating during separation– in some states this may be considered adultery, and is strongly cautioned against.
Some States Still Recognize At-Fault Divorces
While many states no longer recognize at-fault divorces, there are still some that do. In South Carolina, if you can prove fault based on one of four grounds – desertion for more than a year, physical abuse, adultery, or habitual drug/alcohol use, the one-year separation period is reduced to 90 days. When granted, this prevents the at-fault party from being able to seek alimony. That said, proving fault is difficult, and is your responsibility so it will often require a lawyer to assist you.
When you decide it’s time to file for divorce, take some time to research the laws in your state so you know how to proceed. If you are in the middle of a high-conflict divorce, making sure your actions are within your legal right is essential to protecting your case.