Divorce Across State Lines: Can You File for Divorce in Another State?
Before you can file for divorce, you need to make sure that a court in the state has the legal authority to hear your case. This authority is called “jurisdiction.” It is an important part of any case. Without jurisdiction, a judge will toss your case out of court, and you won’t get a divorce decree.
Many people contemplating divorce move away. For example, you might intend to move out of the home and go live with your parents when you file, or you want to follow a new romantic partner to a different state. However, there are rules in every state about who can file for divorce. A court in that state will only hear a case if you satisfy the jurisdictional requirements.
Call Surasky Law Firm. Our Aiken, SC family law attorney can review whether you can file in the Palmetto State. If you intend to move out of South Carolina, we might advise you to find an attorney in another state.
Can I File in South Carolina?
You can file for divorce in a South Carolina court if you meet the residency requirements laid out in Section 20-3-30 of the South Carolina Code:
· You and your spouse are both residents of South Carolina, and the person filing for divorce has lived in the state for at least 3 months; or
· Either you or your spouse has been a resident of South Carolina for one year before filing the divorce petition.
For example, you and your spouse might have lived in South Carolina for three years. You suddenly move to North Carolina to live with your parents. So long as your spouse is still a resident of South Carolina, you can file for divorce in our state because your spouse has resided here for more than one year.
If you both just moved here, then you can file if you have lived here for 3 months. That might mean you will have to wait.
Can I File in South Carolina if I Was Married in California?
Yes—so long as you meet the residency requirement in South Carolina. States must give full faith and credit to judicial decisions in the other states. That means a South Carolina court can grant a divorce even though you married in a different state like California.
Can I File for Divorce in Another State?
You will have to meet the residency requirements. Every state sets its own. In Florida, for example, at least one spouse must have lived in the state for six months before the divorce filing. Other states have no residency requirement at all, which means you can just move there and file.
I have moved to Washington to be with my family, and my spouse has filed in South Carolina. Is this legal?
Yes. The South Carolina court has jurisdiction because your spouse has lived in our state for at least one year before filing. Of course, having a divorce in a South Carolina court is probably inconvenient for you. It might be easier if the divorce was in Washington, which is where you currently live. It can get quite expensive to fly into South Carolina for depositions, court hearings, and the like. Still, if a court has jurisdiction, the judge can hear the case.
If you have children, then a federal law comes into play—the Uniform Child Custody Jurisdiction and Enforcement Act, called UCCJEA. This is a complicated law that identifies whether a court has jurisdiction over child custody issues. It helps to establish jurisdiction in a convenient court.
Let’s return to the situation where you have moved to Washington with your kids, and your husband remains back in South Carolina. If the husband files, then the wife can ask that the case be transferred to Washington because this is where the children live.
Does It Matter Where I File?
It can make a big difference. In addition to convenience, each state has its own divorce laws. These laws can dramatically affect issues like alimony, child support, and the division of marital property. For example, South Carolina law automatically makes a spouse who has committed infidelity ineligible for alimony. Other states do not have this law.
If your spouse has been unfaithful, you might want to file for divorce in South Carolina because that would work to your advantage.
Other considerations involve marital property. For example, each state has different rules for handling personal injury judgments. Imagine you are hurt in a car crash and receive money in a settlement for your injuries. In some states, all of this money belongs to you. In other states, you’ll need to split it with your spouse—even though only you were injured.
A lawyer at Surasky Law Firm can help you think through these issues, so you file in the state where it is most beneficial.
Can You Help Transfer My Divorce to South Carolina?
A court in another state might have jurisdiction because your spouse filed there. But the court could still decline jurisdiction for various reasons. The judge might find that it is an inconvenient forum because the children and most of the evidence are in a different state.
Asking a court to decline jurisdiction and/or transfer a case is legally complex. You should meet with an attorney quickly. Judges often have discretion about transfers, and you want a lawyer who can make a strong argument on your behalf.
Do I Have a Right to Transfer My Case?
You can ask a judge to transfer. Your lawyer will make a solid argument explaining why the case should be in a different state. But a judge doesn’t have to agree.
Contact Surasky Law if You Have Questions
Divorce definitely becomes more complicated when one spouse moves out of state. To fully review the legal options, please call us to get started. Our Aiken divorce lawyer can help you determine which state to file in and can even ask a judge to transfer a case here to South Carolina.
