Gone are the days when young couples get married, buy a home, and stay in one place for the duration of their lives together. It seems that now, more than ever, couples are less likely to establish long-term ties to a particular geographic location. It is not uncommon for young couples to move across the country for a new job, a new school, or simply to try something new. While this lifestyle can be a great way to see new places and try new things, it can create difficult circumstances should the couple decide to get a divorce.
California Residency Requirements
In California, a spouse can petition for a divorce if the residency requirements are met. A California court will only accept petitions for divorce if at least one of the spouses has both (1) lived in California for the 6-month period preceding the petition, and (2) lived in the county where the divorce petition will be filed for the 3-month period preceding the petition. Once the residency requirements are met either spouse may file for divorce in California. If both spouses meet the residency requirements and/or reside in California the process of securing a divorce can be fairly straightforward. Difficulties arise when one spouse is (a) not physically located in California and/or (b) has no ties whatsoever so California.
When you file for a divorce in California, the California court will have jurisdiction over the divorce. It will not necessarily have jurisdiction over both of the spouses. This means that while the divorce decree itself may be attainable, the more detailed aspects of a divorce may be more difficult to achieve. The division of property, assets, and debts can be a component of a divorce that is complicated by spouses residing in or owning property in different states. Courts may have jurisdiction over the divorce itself, but it may have difficulty securing the necessary jurisdiction to divide (or order the division of) marital assets. California courts generally do not have the authority to make legal decisions or order about property that is not in the state.
In Personam Jurisdiction
Divorces, where the California court has in personam jurisdiction over both spouses, will be far less complicated than those where it does not. When a court has in personam jurisdiction it has the power to order a person to do (or not do) something. So, even if a court is lacking the necessary jurisdiction over marital property itself because it is in a different state, it can have jurisdiction over the spouse who owns it. The California court can then order the spouse to do something with the property. If the California court has neither in personam or in rem jurisdiction divorces can be more complicated.
For example, let’s say that you and your spouse, who are originally from Los Angeles, got married in New York, moved to Pennsylvania, and have lived in Massachusetts for the past few years. Last year you decided that the marriage was no longer working and flew back to Los Angeles to be close to family. After living in Los Angeles County for the past 6 months (thereby satisfying both residency requirements) you filed for divorce in California. Your spouse and the property you own together is located in Massachusetts. The California court will have jurisdiction over the divorce and can enter a divorce decree that must be accepted in other states. The California court, however, will have difficulty obtaining the proper jurisdiction over your soon-to-be ex-spouse and your marital property. California divorce law requires that, absent agreements to the contrary, community marital property is to be divided equally. The court, lacking jurisdiction over the property and your spouse, will have a difficult time ordering this division of property.
The California court will have jurisdiction over the divorce and can enter a divorce decree that must be accepted in other states. The California court, however, will have difficulty obtaining the proper jurisdiction over your soon-to-be ex-spouse and your marital property. California divorce law requires that, absent agreements to the contrary, community marital property is to be divided equally. The court, lacking jurisdiction over the property and your spouse, will have a difficult time ordering this division of property.
What can you do in a situation like this? This is generally what is known as a divisible divorce. While you can attain a divorce in a state where your spouse and property are not located, you may be required to file additional petitions in the state that will have the necessary jurisdiction to make the required decisions. This means that you may need to hire an experienced Massachusetts divorce attorney to handle any matters related to property division in your divorce. In this situation, Massachusetts would have both in personam jurisdiction over your spouse and in rem jurisdiction over (at least some of) your marital assets. The Massachusetts courts would probably be in a better position to make determinations and issue legally-binding court orders about the division of marital assets.
Divorces where spouses have ties to multiple states and/or are not both residents of the same state can be difficult. Generally, a state court will have jurisdiction over a divorce if at least one of the spouses meets the state’s divorce residency requirements. While this gives the state in which the petition is filed the authority to end the marriage, it does not automatically give the state the authority to make decisions about marital property.
If you are considering a divorce it is important to understand the divorce laws of any state that could potentially have jurisdiction. Each state has slightly different divorce laws and some may be more beneficial to you than others. It may also be beneficial to choose the state which will have both in personam and/or in rem jurisdiction. For more information about getting a divorce when you and your spouse live in different states contact the family law attorneys at Berenji & Associates.