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What is Divorce?

Divorce is the legal process that dissolves a marriage between two spouses. After the divorce process is completed, both parties are free to remarry if they so choose.

Divorce law is the body of laws which governs the divorce process. To finalize a divorce the court will issue a divorce decree.

This document provides a judgment and order that makes the termination of the marriage official. Each divorce decree will differ because it will be based upon the unique facts and circumstances of the case.

The purpose of divorce decrees is to provide an outline of the rights and duties of each party in relation to the divorce. It also serves to provide the parties with instructions regarding the division of property and child custody, if those issues apply.

A spouse's status as married or divorced will not be altered or finalized until the divorce decree is issued. A divorce proceeding that has not yet been finalized may affect numerous areas of an individual's life, including:

The divorce decree will typically address issues including:

  • The division of property between the spouses;
  • Spousal support or alimony;
  • Issues related to children, if there are children, including:
    • custody;
    • support; and
    • visitation; and
  • The financial obligations of each spouse, for example, if debts are to be paid by one or more of the parties.

In addition to the issues outlined above, divorce decrees will usually contain basic information related to the case, including:

  • The names of the parties;
  • The date the divorce decree went into effect; and
  • The case number.

This identifying information may be helpful for an individual who is attempting to locate the records of their divorce at a future date. Divorce records are usually kept at the local county records office.

The divorce record is evidence that the parties were married and that they have legally and officially terminated that marriage. The divorce record can be official, which means that it can be accessed from the state records, usually for a fee.

In addition, the divorce record may be indexed, meaning that it is accessible through various organizations or websites. Typically, the divorce record can be obtained at the county court where the divorce was filed.

If the information is not available there, it may be available at the local recorder's office or online with a private company.

What are Some Tips When Filing Divorce Papers?

In many cases, the divorce process is lengthy and somewhat complicated. This applies especially for individuals who have been married for a long period of time and have complex property issues to sort out.

Tips parties can follow that may be helpful when they are filing divorce papers may include:

  • Attempt to be cooperative: If a party is difficult or evasive, it only serves to complicate the process and may make it more lengthy and expensive in the long run;
  • Think ahead: Be sure to note any issues that may be of immediate concern, such as any outstanding debt or property issues;
  • Laws are different by state: Be sure to understand that divorce laws are very different from region to region. Do not go by what others say regarding the law. It is important to speak to a professional regarding any questions about the laws in the area; and
  • Be honest when making disclosures: Laws prohibit individuals from concealing hidden assets in a divorce proceeding.

It is extremely important to speak up with any questions or concerns that arise. Consulting with an attorney may be helpful if advice or guidance is needed on any issues.

Aspects of divorce proceedings which often require clarification include:

What are Some Tips for the Divorce Process?

Although divorce has become fairly commonplace in modern society, individuals often rely on their attorneys to educate them on the divorce process. This is perfectly acceptable, especially since lawyers are trained on these issues and it is their job to advise and counsel their clients.

Thanks to the internet, however, divorce information is now available at our fingertips. Individuals may take advantage of this information and educate themselves for their own benefit.

It is important to remember, however, that not all information found online is accurate and some may be outdated. When an individual is going through the divorce process, they may find the following legal tips helpful:

  • Keep an open line of communication with the other spouse: Unclear or unhelpful communications may prolong the divorce proceedings, making them even more unpleasant for all parties involved. Communication that is not constructive may hinder resolving issues, including:
  • Be sure to disclose all assets and property: If one party does not disclose everything, it may hurt their chances of a settlement and cause additional legal proceedings;
  • Ask questions: Each party should ask their attorney, their spouse, and their spouse's attorney as many questions as possible in order to avoid any surprises;
  • Do not complicate custody or visitation agreements for the children: Complications may be viewed by the court as disrespectful towards its orders which may, in turn, adversely affect that party's case;
  • Do not get married during the divorce proceedings: Until the divorce is finalized, the parties are still legally married; and
  • Do not sell any major assets during the divorce: This only serves to complicate the proceedings and make it more likely that the actions will be viewed as having an ulterior motive.

Although a lawyer is not required to obtain a divorce, having one may make the process go more smoothly. A lawyer can also provide advice and foresee issues that the parties may not have considered themselves.

What if There are Unforeseen Issues When Filing for Divorce?

It is always best for the parties to be prepared before and during their divorce proceedings. As with any legal proceeding, however, there may always be unforeseen legal matters and issues which may arise.

For example, if one of the parties had a recent change in residence, it may create legal issues related to relocation and child custody matters. It may also have an effect on the overall divorce decree, especially if the well-being or safety of the child is under consideration.

In these situations, an individual should inform their attorney if there are any new issues which arise during the divorce proceedings. Some issues may not have any legal effect on the case, but some may affect the way the case is concluded.

It is important for an individual to be honest and forthright with their attorney. An attorney will not be able to make the best recommendation for their client unless their client has provided them with all of the facts.

How to File for Divorce When Spouses Reside in Different States

While it is fairly common for someone to move to a different state once they separate from their spouse, doing so can present potential difficulties when formally filing for divorce and reaching final resolutions. All states require that the spouse who files for divorce be a resident of the state in which they file their divorce petition. 

The amount of time required for establishing residency varies from state to state, but generally ranges from six months to one year. Residency can be defined as having a physical presence as well as the intent to remain indefinitely in that state. You are allowed to work outside of the state while establishing residency, as long as you are actually living in the state in which you are trying to establish residency.

If you and your spouse are now residing in separate states, then each of you maintains the right to file for a divorce in your current home states. As a matter of convenience, it may be best to file in your state before your spouse files in theirs; you may be required to travel there for divorce proceedings, as well as to arrange and change child support and custody orders, and property settlement agreements.

What Do I Need to Do to File for Divorce If My Spouse Lives in a Different State?

As previously mentioned, the first step will be to check your individual state's divorce residency requirements. You can file for divorce in a state other than the state in which you are married, as long as you meet residency requirements. If you do not meet the residency requirements for the state in which you are attempting to file for divorce, your divorce complaint can be rejected. 

If both spouses file for divorce at the same time, which is referred to as concurrent filing, the general rule is that whichever petition is filed and served first will proceed to court. Therefore, if you wish to file in a state that is more favorable to you in the divorce, you should file as soon as possible to avoid the issue. Once you file, then make sure that your serve the papers to your spouse, which means that they are in-person (or as close as possible) notified about the divorce and have the papers for the divorce process in their hands. 

The actual divorce process will vary according to the state in which the divorce was filed, as well as property issues and child custody. Both parties must participate in all steps of the divorce process, and if any of the requirements for a legal divorce are not met, the validity of the divorce status could be affected. However, the process is typically the same once the initial petition for divorce has been filed by either spouse in the state in which they reside:

  • Notification: The other spouse must be notified or served with the divorce papers; they then have twenty to thirty days to respond to the complaint. If they fail to do so, a judge will generally grant the petition. If the spouse cannot be located, such as if they moved to a different state without notifying anyone of their whereabouts, they may still be notified through “service by publication.” An example of this would be placing a notification in the newspaper.
  • Temporary or Preliminary Hearing: This initial meeting is for the spouses, their attorneys, and the judge. A preliminary hearing is meant to resolve matters that need to be addressed immediately, which cannot wait until the actual trial. Examples of this include requesting temporary child support or custody, requesting exclusive use of the marital residence, and requesting instructions regarding insurance.
  • Negotiations, Mediation, and Agreements: At this point the parties may attempt to solve their differences through negotiations, mediation, or other forms of alternative dispute resolution such as early neutral evaluation. 
  • Trial: Issues not addressed through negotiation must be addressed through trial. Each side presents their arguments as well as evidence in support of their requests. Trial is not always required, if the parties are amicable and are able to come to an agreement through mediation alone. 
  • Post Trial Issues: Ideally, all issues will be settled during trial. However, additional legal issues may present themselves after the trial. Appeals and child custody adjustment are some common examples.

The Pros and Cons of Filing for Divorce in a Different State

Because each state has different laws regarding divorce and community property rules, it may be more advantageous to file for divorce in one state, as opposed to the other. Some common issues to consider include:

  • Does the state allow for a no fault divorce? All states allow for some form of a no fault divorce, which are generally smoother cases. No fault divorces are essentially those in which the couple claims “irreconcilable differences” as the reason for divorce.
    • However, some states still allow a spouse to allege that the divorce resulted from some fault of the other spouse. In such cases, the spouse's misconduct may cause the court to award higher alimony payments, a larger share of marital property, etc. 
  • How does the state handle the distribution of property? Each state's laws determine whether they follow community property distribution, or equitable distribution of marital property. In community property states, the marital property is divided evenly. In equitable distribution states, the marital property is divided in a way that is fair and appropriate. 
    • Once again, it is possible to file for divorce in a community property state even if the marriage is in an equitable distribution state; the only determining factor is residency.

As logistics are concerned, it may be more practical to file in your own state as opposed to letting the out of state spouse file for divorce. However, the out of state spouse may live in a community property state, which may be more advantageous. It is a good idea to do your research and decide which works best for you.

How Can an Attorney Help Me When Filing for Divorce from a Spouse Living in a Different State?

The divorce process is often challenging and emotionally charged. Because of this, it would be helpful to consult with a divorce lawyer who can explain your rights and to protect your interests throughout the divorce process.

Your lawyer will be able to answer any questions as well as provide advice on how issues may be handled by the court. In addition, your lawyer will know how to navigate the complicated legal process efficiently and will be there in the event you have any questions or concerns.

The factors of your specific case will determine whether or not you should hire an attorney to handle your out of state divorce. A skilled and knowledgeable divorce lawyer can help educate you on your state's residency requirements, as well as advise you in regards to which is the best state in which to file for divorce. Additionally, they will assist you fulfilling procedural requirements, and represent your interests in court while reaching a fair.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.