California has a residency requirement that all persons considering a divorce must be made aware of. Either you or your spouse must have lived in California for at least six months and the county in which you file for three months before you are jurisdictionally eligible to file for a divorce.
Most states have a residency requirements, but the requirements vastly differ from state to state. The California court wants to make sure that you are a resident of California and just here to take advantage of the community property laws. In some cases, the California community property laws will not benefit you, and even be detrimental to your case.
In any event, it is important to keep these residency requirements for a California divorce in mind when filing for the divorce. One of the first questions the judge will ask the parties is whether you have been a resident of the state of California for at least six months and the county in which you file for three months.
However, many people who do not meet the residency requirement may still file for a legal separation in California. A legal separation is procedurally the same process as a dissolution of marriage but at the end of the day you are still legally married with a legal separation. This will prevent you from marrying someone else because you are still married.
The residency requirements for a California Divorce is different than the laws to determine which state has jurisdiction to adjudicate custody issues under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). There are also strict timelines when determining which state may be a child’s home state for purposes of custody and visitation under the UCCJEA.
Here are the legal definitions and standards.
A “resident” of the state means California domicile—i.e., for at least six months preceding filing of the petition, at least one of the spouses must have satisfied the dual standards of actual residence in the state and an intent to remain indefinitely. A spouse satisfies the minimum county residence requirement only if he or she has been “actually residing” (physically present) in the county where the dissolution action is commenced for at least three months. Actual residence outside the county, with an intent to return to a former residence in the county at some future time, does not suffice. Indeed, unless the issue is raised within the 30–day response period (by motion to quash the proceeding) any defect in the residency requirements is waived.
Spouses who do not presently satisfy the statutory residence requirements but who want to pursue marriage dissolution without delay have the option of filing for legal separation (as to which there is no minimum residence prerequisite) and then amending the petition or response (as the case may be) to request a dissolution once the residence requirements are satisfied. [Fam.C. § 2321(a). In effect, spouses awaiting compliance with the residency requirements are not compelled to postpone commencement of a marriage termination action. The amended pleading approach will expedite full adjudication of the dissolution case where Fam.C. § 2320(a) is the only stumbling block. While the court cannot enter a judgment dissolving marital status until the six-months/three-months residency requirements are met, it can immediately act on the petition for legal separation to adjudicate the full bundle of marital rights and responsibilities put in issue by the pleadings (community property division, support, custody, etc.). Service of process on the legal separation petition (ultimately amended to request dissolution)
will also start the clock on the six-month “waiting period” for finality of a judgment terminating marital status, optimizing the time-frame within which the parties will be legally restored to “single” status.
If you are looking for a divorce within the Riverside, San Bernardino, or Hemet courthouses, please contact our office for a free initial consultation. If you have concerns about the residency requirements for a California Divorce or the requirements under the UCCJEA, please set a free initial consultation with our office to discuss these issues with the attorney.