“Can I get a divorce in Alabama if my spouse moved out of the state?” is a common question we are asked. The answer is, “Usually you can, but it depends on the particular circumstances.” Whether you should file for divorce in one state or the other is an equally important question. When deciding which state to file in, you will have to weigh the advantages of attempting to file in each state versus the potential difficulties.
Most couples remain in the same state after separating, the spouse filing does so in his/her county, and state laws will apply to custody and assets (usually even those in other states). It is rather common for one or both spouses to leave the state, and possibly with children. With assets and property spread in two or more states, this is the point at which you will want an attorney’s advice on how to proceed. Consider that your spouse may attempt to file in the state where they have established residency before you can. If you are ready to divorce, there is no need to delay simply out of confusion; below are the considerations a family law attorney will help you understand.
1. Children
One of the more straightforward considerations is where your children live. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted by every state except Massachusetts. Under the UCCJEA, children are residents of a state if they have lived continuously in it for at least six months. That state will decide custody issues. If you have a reason to still file for divorce in the other state, this will make necessary more time in court and legal fees; one state will issue the divorce decree, and another will make rulings on child custody. There may be situations where you hustle to file before the children have lived six months in a new state or conversely you may choose to wait until that time has passed to proceed.
2. Alimony
Alimony, or spousal support varies significantly from state to state. Alabama courts consider factors such as the lower-earning spouse’s current standard of living and child custody in determining alimony. If you are, for instance, an Alabama stay-at-home mom filing for divorce and your husband has become a resident of of another state where they consider neither standard of living nor custodial status, you may not want your husband filing in that other state.
3. Property and Assets
You may be aware that some states are considered “community property” states, essentially states where each spouse gets exactly half despite who earned it or from whose family it originated (some trusts notwithstanding). Alabama is an “equitable distribution” state, which means the court decides what seems fair depending on a range of circumstances. It will be up to you to decide which state benefits you.
If the marital property is in a different state than where the divorce is occurring, it could get complicated. Often times, the law of the state issuing the divorce decree holds sway, that is if the court can establish jurisdiction over both spouses. Establishing personal jurisdiction means that the court decides the other spouse still has sufficient personal affairs in the state to make its ruling appropriate. If your spouse won’t step foot in the state where you are attempting to file, you can still get a divorce decree; however, property division will linger and you will receive a “status only” divorce as the other state where the property is located will determine distribution in a later court case filed in that state.
4. Filing in Both States
If you both claim residency in different states, your spouse has a right to file in his/her current location. And if you both file at the same time, it will be a matter of which state determines personal jurisdiction first.
As you can see, your decision may be as simple as filing in your home state so that you and your children will not have to make travel arrangements; but, with an out-of-state spouse, the complexities of divorce and legal differences between states can quickly overwhelm you. These issues above represent the tip of the iceberg. The expertise of a family law attorney sought as soon as divorce is a certainty will save you stress and likely, money. Your situation is unique, so learn all the facts to make your best decision. For compassionate family law expertise, contact the Semmes Law Firm today by clicking here.
