Splitting When You’re Already Separated
Separating from your spouse is rarely an impulsive decision. In most cases, legal separations and divorces happen after a series of long and serious series decisions made by both spouses. The actual legal process of separation is often just a matter of making official the split that’s already occurred. Many couples are already living separately and living their own lives by the time a divorce is begun.
It’s important to be sure that a separation or divorce is right for you. However, trial separations or otherwise living apart before a divorce can throw a wrench in the actual divorce process. This is even more true if you or your spouse has moved to another state. Many states have different laws regarding divorce, especially surrounding the division of assets. If your spouse no longer lives in California and you’re attempting to get a divorce, you will likely run into some complications.
How California’s Divorce Laws Are Different
If you and your spouse both live in California and want to file for divorce, then the divorce will be held to California law no matter what. If your spouse has moved out of the state, things can get a little more complicated. That’s because California’s laws regarding the division of assets are different from the rest of the country.
California and eight other states are community property states, as opposed to an equitable distribution state. In California, all assets and property a couple acquires after the marriage are considered jointly owned unless there is a specific contact specifying certain assets as separate property. All jointly owned property is known as community property. This community property is divided equally after a divorce – both spouses should receive half, regardless of who “earned” it.
Meanwhile, in equitable distribution states, the property and assets acquired during a marriage are divided equitably, not equally. Instead of a 50/50 split, the court can award each spouse a different percentage of the total assets. This often, but not always, leads to a higher-earning spouse receiving a larger portion of the marital assets. However, it’s also possible for a judge to order that separate property be used in a divorce settlement instead of ignoring it.
Who Has Jurisdiction Over Property?
One of the most significant potential complications in a multi-state divorce is property jurisdiction. Even if you and your spouse both live in the same state, it’s not uncommon to own property in other states, such as vacation homes or investment properties. The problem is that the state in which you divorce only has official jurisdiction over property that is in that state specifically: California only has jurisdiction over property that’s in California.
If both you and your spouse both live in the same state, there’s an easy fix for this. States have jurisdiction over anyone who lives in them. So, while California courts can’t directly issue a ruling for a specific property in another state, they can order the California resident who owns the property to do something with it.
This process becomes more complex when you and your spouse meet the residency rules for different states. The courts in either state can order a divorce because they only require jurisdiction over one party. However, they cannot order anything regarding the division of marital property in other states since they don’t have jurisdiction over both owners. Unless both parties agree to follow the laws of one state, the result is a “divisible divorce,” in which the divorce process and the division of assets occur in separate proceedings.
How Is Custody Decided?
Child custody arrangements in multi-state divorces are often less legally complicated than the division of assets. Forty-nine states and the District of Columbia have all put the Uniform Child Custody Jurisdiction and Enforcement Act into place. This act outlines that only one state can issue a custody judgment for a child and that other states must defer to that judgment. This state can be the child’s home state or a state where the child has significant connections, such as family and teachers. Once the decision is in place, it can be modified in that state only.
How to File for Divorce in Separate States
To file for divorce somewhere, either you or your spouse must meet the residency requirements for that state and county. In California, that means you must have lived in the state for at least six months and in the county in which you plan to file for at least three months. If you want to file in the state in which your spouse lives, the residency requirements may be different.
Once you meet the residency requirements, you can decide with your spouse which set of laws you would like to apply to your divorce. If you cannot agree, then the laws that apply will likely be those of the state in which the divorce was filed. It may be a wise idea to file for divorce first to decide which state will be handling the legal process.
Finally, you can have your spouse served with divorce papers. You will need to have the papers delivered to them, which likely means they will be served in their new home state. Once they have been served, the divorce process has officially begun.
Low-Stress Separation While Separated
Divorcing while living in different states is a complex legal process, as are dividing assets and deciding on child custody. If you plan on divorcing your spouse, it’s worth reaching out to a qualified local divorce attorney to discuss your options.
Filing divorce in your own state can save you significant amounts of time and effort since you will be able to attend court proceedings and meet with your attorney quickly. Your local California attorney will be well-versed in local laws and rulings, and they will be able to help you navigate the complexities of dividing assets in multiple states. Divorcing is a stressful time. Get in contact with an experienced attorney today so they can help make it less work.
