In order to file for divorce in California, one party must be a resident of the county where filed three months prior to filing and a resident of California for six months prior to filing. A common question is can a spouse file for divorce if said residency requirements are not met? This can happen if the spouses resided in another state during marriage and one spouse has recently moved to California. The answer to that question is “no”. There is no way getting around the residency requirement for a divorce. However, the inability to meet the residency requirement does completely close the door. An option is for the spouse that does not quite meet the residency requirement is to file a “legal separation” and then when the residency requirements are met, amend the petition to a dissolution/divorce. The only caveat is if the other spouse who is residing in another state files for a divorce and serves the spouse that filed for legal separation in California, the divorce filing in the other state trumps the legal separation filing. Thus, the spouse that filed for legal separation may be out money for the costs and attorney fees paid for the legal separation. The county does not offer refunds.
If the situation above exists and you do not quite meet the residency requirements you will need to decide whether you will wait to file for dissolution until the requirements are met or file for legal separation and amend it later to a divorce. Such decision will many times hinge on whether the spouse needs orders such as custody or child support. The good news is that failing to meet the residency requirement does not completely close the door.
DISCLAIMER: The above article is for informational and educational use only. It is not intended to be legal advice in any way. If legal advice is needed, please seek legal consultation.
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