In order to end the marital relationship, the marriage must be dissolved. The dissolution proceeding can be in the form of a declaration that the marriage is void, an annulment or a divorce. Until the marriage is formally dissolved through a court judgment, it continues to exist.
The dissolution of a marriage begins with a lawsuit. One of the spouses (or a parent in cases other than divorce) files a petition with the court requesting that the marriage be dissolved and property be divided. The filing spouse is known as the petitioner; the other spouse is the respondent. Issues concerning child custody and child support are decided separately.
Venue And Jurisdiction
Laws require that a spouse reside in the state (and county) for a period of time before a suit for dissolution can be filed in that location. Residency requirements vary according to the state. For instance, a spouse who has moved to another state may be required to live there at least 6 months before fulfilling the residency requirement. The place the lawsuit is filed is the venue.
Jurisdiction allows the court to decide matters concerning a person's obligations during the divorce proceeding. For instance, if the court does not have jurisdiction over one of the spouses, the judge cannot order that spouse to pay alimony. Typically, the court gets jurisdiction over a person because she lives or works in the state or county. In divorce actions, laws give the court jurisdiction over the non-resident respondent for a period of time after the spouses stopped living together as man and wife. For example, a husband who moved out and left the state a year ago is still under the court's jurisdiction when the wife files for divorce. The judge can make any orders concerning division of property, payment of support and issues concerning child custody and the husband must follow them.
Can I file for divorce from my husband if he has been living in another state for 5 years?
Yes. Since you are the party who is filing the lawsuit, you are the one who must meet the residency requirements. However, the divorce will not be granted until your husband is notified, or served, with the lawsuit.
I've been living in California for 6 months and was served with a suit for divorce my husband filed in Texas. Can he obtain a divorce?
Yes. Now that you have been served, you must reply to the lawsuit or risk a default judgment. Since you recently moved, the Texas court still has jurisdiction over you.
TIP: Once you reply or answer the lawsuit, the Texas court has jurisdiction over you and the judge can decide any matters pertaining to you in the divorce action.
SIDEBAR: Laws generally give courts jurisdiction over the non-resident spouse if the last place she lived during the marriage was in the state where the divorce was filed. However, the filing must occur within a certain time period – e.g., 1 year after the spouses stopped living together.
I visited my sister during the month prior to filing for a divorce. Can my wife claim I am no longer a resident of the county in which I filed?
No. Temporary absences from your normal place of residence do not cause you to lose residence in the county. Your wife would have to prove that you intended to establish a new residence elsewhere.
SIDEBAR: Absences due to military service or public service, such as an elected official moving to Washington, D.C., from the usual place of residence do not end the residency.
I've been living and working in Europe for several years with only occasional visits to my husband in the states. In a divorce action, will the state court have jurisdiction over me?
Yes. Although, it has been many years since you actually resided in the state or with your husband, your separation is a work separation, not a marital one. Courts do not consider spouses that are living apart due to job responsibilities or to purse a career as having ended their marital cohabitation. For purposes of jurisdiction, you still have a martial residence with your husband.