In the past, our attorneys have discussed the issue of California residency requirement for divorce. California law states that a judgement of marriage dissolution may not be entered unless one of the spouses was a resident of the State of California for 6 months and of the county in which the case is being filed for 3 months immediately before the petition is filed.
In this article, we are going to look into the California residency requirement for divorce and specifically the 6 month requirement and what it really means. This is only for California marriage dissolution actions. It does not apply to legal separation, annulments or domestic partnerships. The rule for the 3 month county residency is also different.
California Residency Requirement for Divorce
When evaluating the residency requirement for a divorce in California, the key word is “domicile.” Domicile has two components – first, physical presence in California and, second, an intent to remain here indefinitely. The second does not mean that you cannot ever move. It simply means your intent at the time of filing is to stay here. This issue can get tricky and every case is different if there are already plans in place to move.
How do you show domicile?
First, you should know that it is not a black or white rule. Like most things in family law, there are gray areas with the residency requirement for divorce and just because someone is physically in the state or absent from it automatically proves or disproves domicile.
The Court will look at issues such as:
- Home ownership or residency through a lease or rental agreement,
- Business ventures or ownership,
- Driver’s license and registration,
- Voter registration,
- Tax returns,
- Money with financial institutions including banks,
- Mail receipt, memberships and organizations.
The more of these factors point to California as the domicile, the more likely California will be considered the domicile. The reverse is also true.
Question to consider when filing
If you find yourself in a situation where you not sure whether or not to file in California, here are some questions to consider. Please be sure you hire an experienced attorney to assist you with these questions.
1. How well do you match up with the domicile requirements for filing a divorce?
2. Should you file for legal separation instead until you meet the residency requirement?
3. How likely is it that your spouse will file in another state or fight against your filing in this State?
4. If your spouse has filed in here and you want to challenge it, does he or she meet the domicile test and what are the legal hurdles you have and must meet to dismiss his or her case?
5. Where are the witnesses, property, documents and children located? In California or out of state? This is important because even if you or your spouse may meet the domicile test, California may still not be the best forum for adjudicating the case.
6. What are California’s laws when compared to the other potential state’s laws that you have the option to file within? For this question, you will need to consult with an attorney licensed in the other state. For example, are California’s laws more or less favorable toward your issues of support, custody, property division, etc.?
7. What is the cost vs. benefit analysis of challenging jurisdiction or filing here and having jurisdiction challenged?
Hey, nobody said it would be a walk in the park, right? But the good news is the experience of a divorce attorney can help you make the right decision when it comes to the California’s residency requirement for divorce.
- For some additional interesting reading, check out our brief on the California family law appellate case called Marriage of Barth. It’s a good example of “careful what you wish for” when it comes to residency issues.
- On a related topic to the residency requirement for divorce, many also ask how to serve divorce papers. Click on the link and find out.
- Finally, have you checked out part I of our article called “divorcing a narcissist“? If not, it’s a good read. Part II is coming soon.