Residency Requirements for Divorce: When and Where You Can File

The primary purpose of residency rules is to prevent "forum shopping." Without these mandates, a spouse might move to a state with more favorable laws (such as better alimony guidelines or property division rules) just to gain a tactical advantage. By requiring a minimum period of residency, the law ensures that the state providing the judicial service has a legitimate interest in the family unit.

While often used interchangeably, residency and domicile are distinct legal concepts. Residency refers to where you are physically living at a given time. Domicile is your true, permanent home: the place you intend to return to even if you are temporarily away. For a divorce residency requirement, most states require "bona fide residency," which essentially combines physical presence with the intent to remain in the state indefinitely.

Subject matter jurisdiction refers to the court's authority over the divorce itself. This is typically established through residency. Personal jurisdiction, on the other hand, is the court's authority over the individual spouses. A court might have the power to grant the divorce (subject matter) but lack the power to order an out-of-state spouse to pay alimony (personal jurisdiction) unless they have "minimum contacts" with the state.

Filing in a state where you do not meet the residency requirements for divorce is a high-risk error. If the court later discovers it lacked jurisdiction, the entire case can be dismissed. This means all previous orders (regarding temporary support or custody) become void, and you must restart the entire process in the correct state, losing months of progress and thousands of dollars in legal fees.

Most states utilize a three-month to six-month window for residency. However, some states also impose a county-level requirement. For example, in Texas, you must live in the state for six months and in the specific county where you file for at least 90 days. California also requires six months in the state and three months in the county of filing.

Simply owning a vacation home in a state does not satisfy the residency requirements for divorce. Courts look for "indicia of residency," such as:

A valid state driver's license.

• Voter registration in the state.
• Tax returns filed with a state address.
• Consistent physical presence (documented through bank statements or employment records).

States like New York, Massachusetts, and Rhode Island have some of the most rigorous standards, often requiring a full year of residency unless the marriage was performed in the state or the grounds for divorce occurred there. These strict rules are designed to ensure that only long-term residents utilize their court resources for complex dissolutions.

A few states allow for a shorter statutory period to accommodate a more mobile population. Nevada is famous for its six-week requirement, while states like South Dakota, Washington, and Alaska focus more on the "intent to remain" (domicile) rather than a specific number of days, allowing for an almost immediate filing if domicile is proven.

Federal and state laws provide protections for service members. In most states, a member of the Armed Forces stationed at a base within the state for a set period (often six months) is presumed to be a resident for divorce purposes. This allows military families to utilize local courts even if their "Home of Record" is in a different state.

For U.S. Citizens living abroad, the question of how long do you have to live in a state to file for divorce becomes complicated. If you have been living overseas for years, you may still be able to file in the U.S. State where you maintain your domicile (where you vote, pay taxes, and hold a license). However, if both spouses are overseas, the court may lack personal jurisdiction to divide certain assets or decide custody.

In an uncontested case, the court may be less aggressive in verifying residency, often relying on the sworn affidavits of the parties. However, even in a "joint filing," the residency requirements for divorce must be technically met to ensure the final decree is legally binding and recognized by other states.

In a contested matter, residency often becomes a primary weapon. If one spouse wants to delay the case or move it to a different forum, they will challenge the other's residency. They may present evidence that the filing spouse spent significant time out of state or maintained a home elsewhere. SJKP LLP applies an analytical rigor to defending these challenges to maintain your chosen forum.

Under the UCCJEA, the court that decides custody must be the child's "Home State." This is defined as the state where the child has lived with a parent for at least six consecutive months before the case began. Even if you meet the state's residency requirement for a divorce in 90 days, the court cannot decide custody until the six-month mark is reached.

In cases of domestic violence or child abandonment, a court can exercise "temporary emergency jurisdiction" even if the six-month residency has not been met. This allows a judge to issue immediate protective orders until the child's home state can take over the case.

Jurisdiction is a matter of law, but there are limited ways in which parties can influence where the case is heard.

While you cannot "waive" the state's requirement for subject matter jurisdiction, a spouse can consent to a court's "personal jurisdiction." If you file in a state where you have lived for six months but your spouse lives elsewhere, they can choose to waive their objection and participate in the case, allowing the court to decide financial matters.

If a party lies about their residency to file in a specific state, it is considered "fraud on the court." Challenging these allegations requires a methodical execution of discovery: subpoenas for phone records, bank transactions, and employment logs to prove the party was not physically present as claimed.

If you and your spouse live in different states, you may have a choice of where to file. This is where a divorce filing eligibility audit is vital. One state may have more favorable laws regarding alimony or the division of professional degrees. SJKP LLP analyzes these factors to identify the forum that offers the greatest strategic advantage for your specific assets.

The goal of our jurisdictional litigation is to prevent the "restart" of your case. We ensure that your initial filing is surgically drafted with the correct residency allegations and supported by a redundant layer of evidence. This prevents the other side from using jurisdictional technicalities to drain your resources and delay your path to finality.