How to Divorce Someone Out of State

Male hand pointing on USA map - out of state concept

How does the divorce process work when spouses are living in not only different households, but different states? Does it matter where the divorce is filed? Can you file for divorce in  a state other than the state in which you reside? 

Can I File for Divorce Out of State?

If you or your spouse has moved out of state, you may be able to file in the state where you live or in the state where they live. Most states, including North Dakota and Minnesota, have a residency requirement in order to file for divorce. In both states, the residency requirement is six months prior to beginning the divorce action (serving the other party and filing the action with the court) (or 180 days) .   

In North Dakota, however, if the person filing for divorce has not been a state resident for 6 months prior to commencement of the action, but will have been a resident for 6 months prior to Entry of Judgment, the decree of divorce may be granted and North Dakota may properly assert jurisdiction. 

The divorce petition must be filed in the county where one of the spouses resides.  This is referred to as the proper “venue”.   

If you and your spouse lived in North Dakota throughout your marriage, but afterseparation, your spouse moves to Minnesotaa divorce action could be filed in either North Dakota or in Minnesota as long as your spouse has lived in Minnesota for the requisite six-month time frame for Minnesota to assert jurisdiction.  

Should You File for Divorce Out of State?

There are a number of considerations when deciding whether to file for divorce out of state. For most, convenience is at the top of the list. If you and your spouse live just across the state line from one another, that may not be much of a concern. But for many others with a spouse who has moved out of state, it could be burdensome to participate in a legal case hours away from their home. Since a divorce can only be heard by one court i, most prefer to file in their own home state to avoid the expense and inconvenience of travel. 

But convenience isn’t the only thing to think about. If one spouse lives in a state and meets the residency requirement, the court in that state has jurisdiction over the marriage (and divorce). But issues of child custody have their own set of jurisdictional considerations. Jurisdiction to determine custody is based on the “home state” of the minor child, as “home state” is defined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Only the home state has jurisdiction over child custody decisions, even if another state might be able to enter a decree of divorce.

“Choice of law” issues might be another reason to file for divorce out of state. For instance, if you were hoping to receive spousal support (alimony), the law of one state might make it more likely that a court would grant you support. You might choose to file in the state with the law that is more favorable to your position.  

How to Serve Someone Divorce Papers Out of State

Once you decide where to file your divorce, you need to serve your spouse with the initial pleadings to begin the action.  This is known as “service of process.”  . Most states require that someone be served via “personal service,” and each state has its own requirements as to what constitutes “personal service.”  Service of process means that your spouse has officially been given notice that they have been sued for divorce, so that they will have the opportunity to participate in the case. Proper notice is essential; without it, a court could find that the divorce is not valid. 

There are several ways to achieve service of process out of state. The best is to have a law enforcement officer or professional process server put the papers in your spouse’s hands and provide an affidavit that they did so. Another option is to serve your spouse by certified mail with a return receipt signed by your spouse to prove that they received the papers. If your spouse dodges a process server, or you don’t know their location, a court may allow you to serve them by publication in a legal newspaper or by other means. 

If you have further questions about how to divorce someone out of state, we invite you to contact Fremstad Law to schedule a consultation.