Divorces are rarely simple or emotionally straightforward. And when you consider the various legal considerations and requirements, things become even more tangled. One frequent situation we encounter in our practice involves spouses who are trying to obtain a California divorce while living in another state. If you’re considering filing for divorce in California while living out of state, read on to gain insights on how to traverse this complex situation. Contact us to speak with an experienced California divorce attorney!
Moved Away, Not Out Of Options
Living Out Of State Doesn't Mean You're Out Of California Family Law.
Filing for divorce from another state can feel like navigating two systems at once. At Pakpour Banks LLP, we regularly handle multi-jurisdictional family law cases and can walk you through whether California is still the right place to file, and what that means for your custody, support, and property.
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Conducting Out-of-State Divorces in California
California allows a married individual to file for divorce in the state, provided at least one of the spouses meets certain residency requirements. Specifically, California Family Code Section 2320 provides that a California court may only grant a divorce decree or separation if one of the parties to the marriage has been a resident of the state for six months. In addition, you must have lived in the county where you plan to file for the last three months.
This means that if you’re living out of state, but your spouse is a California resident and meets these requirements, you can file for divorce in California. If neither you nor your spouse meets these residency requirements, you’ll need to wait until you do. You can also choose to file for divorce in your current state of residence if you meet its residency requirements.
Understanding Jurisdiction in Out-of-State Divorces
Location plays a significant role in another critical part of legal proceedings: jurisdiction. Jurisdiction refers to the court’s authority over you and your legal problem. Thus, the court that has jurisdiction is the court that has the authority to make legal decisions regarding your divorce. There are three kinds of jurisdiction: territorial, personal, and subject-matter. Courts generally need all at least territorial and subject-matter jurisdiction to resolve a petition for divorce.
California courts enjoy the ability to resolve divorce-related legal issues, so they have subject-matter jurisdiction over divorce proceedings. In addition, they have territorial jurisdiction, provided one spouse has been a California resident for at least six months. However, for the court to rule on specific issues like property division, alimony, or child custody, it must also have personal jurisdiction over both spouses. This can become complicated if one spouse resides outside California.
The rules around jurisdiction become even more tricky when it comes to dividing pensions or retirement benefits, enforcing child support orders, or establishing paternity. The intersection of state, federal, and sometimes international laws can become confusing quickly. Consequently, it’s advisable to seek the guidance of an experienced attorney to navigate these labyrinthine intricacies.
Do the Same Residency Requirements Apply to Same-Sex Divorces?
California law features an interesting legal twist to its divorce residency requirements for same-sex couples. Specifically, a California court may dissolve a marriage between two same-sex persons even if neither spouse lives in California. However, there are two requirements:
- The marriage was entered in California; and
- Neither party lives in a state that will dissolve the marriage.
However, Congress passed the Respect for Marriage Act of 2022, which required all U.S. states and territories to recognize same-sex marriages. Unless that law is repealed, same-sex couples may no longer take advantage of this exception if they live in the United States.
What Difficulties Can I Expect If I am Filing for Divorce in California While Living Out of State?
Filing for divorce in California while living out of state can present unique challenges. For one, the physical distance complicates communication with your spouse, attorney, and any involved state officials. In addition, the distance makes it much more difficult to attend court proceedings, mediation, or other necessary in-person meetings.
The application of California law can also present complications. This is especially true if you have lived out of state for a significant amount of time and have property, assets, or children in other jurisdictions. California is a community property state. This means that the court will divide all the couple’s assets and debts equally, provided the couple acquired those assets during the marriage. This can affect how property and debts are divided and may differ from the laws in your current state of residence.
Child Custody in Out-of-State Divorces
One of the most challenging aspects of out-of-state divorces in California can be arranging child custody. Like other states, California follows the “best interest of the child” standard when deciding custody issues. This means the court will consider several factors to determine what custody arrangement would best support the child’s well-being. Specific factors include the child’s age, health, and emotional ties to each parent, as well as the ability of each parent to care for the child.
When one parent lives out of state, the court will have to incorporate additional considerations, such as how to ensure the child maintains a strong relationship with both parents despite the distance. This could involve negotiating a custody schedule that accommodates the geographical distance. This typically means the child will have longer but less frequent visits with the out-of-state parent.
If You Get Married in Another State Where Do You File for Divorce?
File for divorce in California if you or your spouse has lived in the state for 6 months and in your current county for 3 months. You can file in any county where either of you meets this residency requirement. For clients in our service area, that typically means Yolo, Sacramento, or Solano County, depending on where your spouse lives.
Where to File If Your Spouse Lives in Davis, Sacramento, or Fairfield
If your spouse meets the residency requirement in one of the counties we serve, you’ll file in that county’s Superior Court, even though you live out of state.
Yolo County (Davis, Woodland): File at the Yolo County Superior Court, 1000 Main Street, Woodland, CA 95695, (530) 406-6704.
Sacramento County (Sacramento, Elk Grove): File at the William R. Ridgeway Family Relations Courthouse, 3341 Power Inn Road, Sacramento, CA 95826, (916) 875-3400.
Solano County (Fairfield): File at the Solano County Hall of Justice, 600 Union Avenue, Fairfield, CA 94533.
Filing in the correct county matters even more in an out-of-state situation, since a mistake here can delay the case by months while you’re already managing the added complexity of distance.
Common questions
Filing for divorce in California from out of state: quick answers
Here are a few of the questions clients ask our California family law attorneys most often.
Can I file for divorce in California if I don't live there anymore?
Yes, as long as you or your spouse meet California's residency requirements under Family Code Section 2320. If neither of you does, you'll generally need to file in your current state of residence instead.
What are California's residency requirements for divorce?
At least one spouse must have lived in California for six months and in the specific county where you're filing for three months. Meeting this threshold is what gives a California court authority to hear your case.
What happens if neither spouse meets California's residency requirement?
If neither of you meets the six-month and three-month thresholds, California courts generally can't take the case, and you'll need to file for divorce in the state where you currently live instead.
Can a California court decide custody or property division if my spouse lives out of state?
California courts have broad authority to hear divorce cases, but deciding issues like property division, spousal support, or custody also requires personal jurisdiction over both spouses, which can get complicated when one spouse lives elsewhere.
Does living out of state complicate my divorce case?
It can. Distance makes attorney communication and court appearances harder, California's community property rules may not match your new state's laws, and custody arrangements often shift toward longer, less frequent visits to accommodate the distance.
Why work with Pakpour Banks LLP for an out-of-state divorce?
Our attorneys have significant experience handling multi-jurisdictional family law cases and understand how to apply California law to get you the best possible outcome, wherever you're currently living.
Can My Spouse Leave California During a Divorce?
The decision to leave California during a divorce can impact several factors of the divorce process, particularly regarding child custody issues. If a spouse with children decides to leave California during the divorce process, it could complicate custody arrangements, especially if they attempt to take shared children with them. Moreover, the relocating spouse may have to return to California for legal proceedings, which can add further stress and financial burden.
How Pakpour Banks LLP Can Assist You
Divorcing your spouse is often a struggle. So is living in another state. Combine those two issues together, and you have a recipe for a bureaucratic and legal headache. However, you don’t have to face this daunting legal challenge alone. The experienced, award-winning team at Pakpour Banks LLP is standing by to provide you with the sterling legal representation you need. Together, we will work to ensure that you are able to fully express and defend your rights and interests in court.
After you schedule an appointment with us, our attorneys can guide you through every step of the process. They can assess your options and inform you of any and all applicable legal requirements you need to fulfill. Our attorneys have significant experience handling multi-jurisdictional cases. In addition, we understand how to apply California laws to help you obtain the best outcome possible.
Don’t wait. Contact us today to set up an initial consultation.
Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.