"We live in Del Mar, but I am filing for divorce in Spain because that is where we got married." This is a common thought: needing to file for divorce in the same place one married.
That would make sense except what if you haven't lived there in years? No property. No bank accounts. No insurance policies. No club memberships. Nothing. You might go visit friends and family there once in a while though.
As we know, a divorce cannot be finalized overnight, especially if the property and or support issues are contested. If it is a contested divorce, then court appearances are likely required by you unless you have a competent attorney in that county. It would be great expense to make continuous overnight trips to attend hearings for your contested divorce. For these reasons, it does not make sense to file for divorce in the county you married.
However, what if the county you were married in has better divorce laws that result in your favor than your spouse? It makes the continuous overnight trips to attend hearings for your contested divorce worth it, right?
If you answered "yes," then you need to take one step back, and learn what the filing requirements are first. Please go the Superior Court of the State to learn about the requirements. It would be a shame to file in the wrong courthouse because of a simple procedure.
For California, you or your spouse must be a resident over the last 6 consecutive months. To file for divorce in a specific county, however, you or the other party must be a resident of that county over the last 3 consecutive months. If you don't meet these two simple requirements, then your filings for a divorce will be denied based on the Courts lacking authority over your matter.
Yet, if you are a same sex couple, then the law differs because not every state in the U.S.A. recognizes same sex marriages. If you were married as a same sex couple in California and moved to a state that does not recognize your marriage, then your divorce filings in California would be proper. You would need to file the divorce in the same county
In fact, California Family Code Section 2320 states the following:
(a) Except as provided in subdivision (b), a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.
(b)(1) A judgment for dissolution, nullity, or legal separation of a marriage between persons of the same sex may be entered, even if neither spouse is a resident of, or maintains a domicile in, this state at the time the proceedings are filed, if the following apply:
(A) The marriage was entered in California.
(B) Neither party to the marriage resides in a jurisdiction that will dissolve the marriage. If the jurisdiction does not recognize the marriage, there shall be a rebuttable presumption that the jurisdiction will not dissolve the marriage.
(2) For the purposes of this subdivision, the superior court in the county where the marriage was entered shall be the proper court for the proceeding. The dissolution, nullity, or legal separation shall be adjudicated in accordance with California law.
Thinking about filing for a divorce in the new year? Contact Your Legal Warrior today at 858.761.8661 for a free consultation!