Where will my divorce be filed?

  • 01 14, 2015
  • Irwin & Irwin
  • Divorce

You and your soon-to-be-ex spouse/partner both live in California, but after separating you move to another county. Where will your divorce (actually called a “dissolution of marriage”) be filed?

In legal terms, this is referred to as establishing “jurisdiction.” First of all, for a person to obtain a dissolution in California, one party must be a “resident” of the State for six months immediately preceding the filing of the petition. Being a resident means to be “domiciled,” which in common terms means the place where someone lives and intends to remain (where your
home is, you receive mail, you work, you attend church or school, etc…) . Further, to establish “venue” you must have been a resident of a particular county for three months immediately
preceding the filing of the petition in that county.

So, let’s say the two of you lived for three years in Los Angeles County, then you moved to Orange County after separating, you have now lived in Orange County for seven months, and
your ex spouse/partner continues to reside in L.A. County. Your dissolution could be filed in either county.

But what if both parties in such a case file petitions for dissolution in their own respective county? The dissolution action will proceed in the county in which a respondent is served first,
even if the other party’s petition was filed first. So, who was served first turns out to be the controlling factor.

Distinguish the above circumstances from a situation where you live in California but the responding party lives in another state. Even though the other person is in another state, as long
as you meet California’s jurisdiction requirements a California court will probably have jurisdiction to grant a change in “marital status.” However, a California court cannot make
orders in a martial action impacting an out-of-state respondent financially unless the court has what is called “personal jurisdiction.” This includes orders regarding child support, spousal
support, and attorneys fees & costs. This is referred to as a “divisible divorce,” and is a discussion for another day.

By: Mark A. Irwin, Esq. and Kelly R.M. Irwin, Esq.