When spouses who are getting divorced live in different states it can make finalizing the dissolution more complex.
If you and your soon-to-be ex live in different states, you’ve likely wondered, Can I file for divorce in another state?
It will be easier if you’re in touch with your ex or at least know where they are currently living. If you don’t, you might need to look into divorce by publication. When you have minor children, it can further complicate the process as well.
Does Illinois Have Jurisdiction Over My Divorce and Custody Case?
Jurisdiction refers to whether or not a court has the authority to rule on matters related to a particular case. Did the plaintiff file in the right state? If you and your spouse have always lived in Illinois, you can’t choose to divorce in another state just because you feel like it.
In some instances, multiple states might have jurisdiction. But jurisdiction differs from the venue. Jurisdiction refers to the power to preside over a case, while venue refers to the correct court within the jurisdiction for the case to be heard.
Establishing Residency in Illinois for a Divorce
To file for divorce in Illinois, you must satisfy the residency requirements. If you have lived in Illinois for the past 90 days, you can file for an Illinois divorce, even if your spouse resides in a different state. Illinois has a relatively low threshold for residency.
You might be able to file the divorce petition before the 90 days, but the court will not rule on anything until the 90 days have passed.
If your spouse has residency in a different state, they might initiate the filing there. For example, consider an example where your spouse lives in California. If they file for divorce in California first, you might be bound by California law.
In cases where you agree on everything, including the division of assets and parenting responsibilities, it might not be a big deal. However, if the divorce is adversarial, this can prove problematic and become expensive. As it stands, a court in another state cannot issue orders on marital assets that are held in a different state, such as the marital home.
Another requirement for filing an Illinois divorce is that you and your spouse must live apart for at least six months. This could be relatively easy to prove if your spouse left the state. However, you can still satisfy the requirement, even if you have lived under the same roof for a while. You must have separate sleeping quarters and live independent lives. That means no physical intimacy.
Minor Children and Interstate Divorce
The child’s residence will determine the appropriate place to file when minor children are involved. That means if you let your spouse take your child out of Illinois, the other state might have jurisdiction if your child has been living there for six months or more.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) comes into play here. The UCCJEA is a uniform law that helps reconcile who has jurisdiction in child custody cases.
How to File for Divorce When My Spouse Is Out of State?
Start by determining whether you meet the eligibility requirements for filing for divorce in Illinois. If you meet the 90-day requirement, you can file for divorce in Illinois, even if your spouse lives in another state. The general process for filing an Illinois divorce is as follows:
Fill Out the Paperwork
You do not need to choose the grounds for divorce because Illinois is now a no-fault divorce state. The primary option is irreconcilable differences.
File the Petition
To officially begin the divorce process, you must file a Petition for Dissolution of Marriage with the proper circuit court in the county where you reside. Include information about yourself, your spouse, and your marriage in the petition. If your spouse lives in another state, you may need to serve the petition on them by mail or through a process server.
Wait for Your Spouse to File a Response
Once you have filed the petition, your spouse has 30 days to respond. If they don’t answer the petition, you may be able to proceed with a default divorce. If they do file an answer, the divorce process will proceed as a contested divorce.
Attend Court Hearings and Participate in Negotiations
You will likely need to participate in negotiations to attempt to work out issues amicably. Most courts will order you to mediate to attempt to work out a custody agreement, child support, the distribution of marital assets, and any other outstanding divorce issues. If you can’t agree, you’ll likely have to go to trial, where a judge will hear evidence and decide on any outstanding issues. Even if you can agree, you’ll likely have to go to court and have a judge sign off on the agreements as they enter their final order.
Dealing with a divorce in different states can be tricky, but it’s not impossible. You need an experienced Illinois interstate divorce lawyer who can help you reach an agreement both sides can live with—thereby eliminating the need for a judge to decide. It’s always best to find a way to compromise and resolve outstanding issues. Otherwise, the judge might return with a ruling you both hate.
Contact Vantage Group Legal
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Don’t try to figure out how to file an interstate divorce on your own. Vantage Group Legal Services is here to help. Our attorneys are some of the best in the business, and we will work tirelessly to protect your rights.