logo logo

Divorcing an Out-of-State Spouse

Divorce a spouse that live in another state can be a difficult process. Also and unfortunately, there is a lot of bad and misleading information published on the internet on the process.  It is important to keep in mind that at the time of divorce, it does not matter where you got married. What matters the most is the state you are living at the time of filing.

Below is a discussion of the divorce process for someone living in Georgia divorcing a spouse that lives in another state the common issues faced with contested and uncontested divorces, and issues faced during divorce filing when the minor children are involved.

Divorcing a Spouse that lives in Another State

At time of divorce filing if you and your spouse are living in a different state, depending on the state that your divorce is being filed in, you need to follow that particular state’s residency requirement. In the state of Georgia, you need to live in Georgia for at least six months before filing for divorce. At the time of the divorce, both spouses are not required to be in Georgia. However, if you are the one who is filing for divorce, then you need to live in Georgia for at least six months before you file. It is important to keep in mind that the six months requirement does not entail that you live in Georgia for few months and then move to another state and come back to Georgia to fulfill the total requirement for six months. You are required to be state of Georgia continuously for minimum of six months. If one of the spouse’s lives in Georgia for at least six months, then the other spouse will be subject to Georgia’s jurisdiction:

  • You served your spouse with the divorced papers in person,
  • Your spouse consents to Georgia jurisdiction by appearing in the Georgia courts where the case is filed or by signing an affidavit confirming that the divorce papers are received and consents to jurisdiction. (This is also known as an “Acknowledgement of Service”)

What happens when your spouse is not willing to sign the Acknowledgement of Service?

If your out-of-state spouse is not willing to sign an ‘acknowledgement of service’, other methods of services might serve you better. State of Georgia can still exercise jurisdiction over your out-of-state spouse if there is a long arm statute, which will allow for jurisdiction over the defendant if the parties maintained a matrimonial house in the State of Georgia during the time action arose. This simply means that if you and your spouse jointly owned the property when you two were married, defendant will be subject to court’s jurisdiction. Regardless, your spouse will still need to be served with the divorce papers through a process server or a sheriff. However, if the spouse cannot be located, then divorce by publication will also suffice.

Proving Residency in State of Georgia

Once the complaint for divorce is finalized and signed, you are attesting under oath that you have maintained the Georgia resident for minimum of six months. However, it is possible that your spouse will contest the divorce by trying to show that you have not lived in state of Georgia for minimum of six months. In situations like this, the judge may ask for additional proof showing that you actually have lived in the State of Georgia for six months. Proof for residency can be evidenced by Georgia license, or by proof of employment in the State of Georgia. The more the evidence, the better it is to prove residency.

Where to file for the Contested Divorce Case

Contested divorce is one where both the parties are not in agreement as to the division of assets and debts, and if the minor children are involved, then determining how the custody should be divided upon an event of a divorce. In a contested divorce case, it is usually filed in the defendant’s state.

Where to File for the Uncontested Divorce Case

In an uncontested divorce case, both parties are in an agreement as to the division of the assets and debts, and custody related matters. Usually in an uncontested divorce case, the divorce can usually be filed in the state of defendant or plaintiff. In the state of Georgia, Georgia courts are usually understanding when a Georgia plaintiff files for uncontested divorce in Georgia regardless of whatever state the defendant spouse is living in.

Where to File when Minor Children are Involved

Divorce proceedings are already complicated enough, but things can become much more complex if minor children are involved. When minor children are involved, you should always consider the best interest of the children when deciding where to file for the divorce. Often the issues arise when the parents are separated and one parent is living in a different state than the other parent. In these circumstances, it is important to determine which Court will have jurisdiction over the children and in which state should the divorce be filed in.

Uniform Child Custody Jurisdiction Enforcement Act

Under Georgia Code O.C.G.A. § 19-9-40, once the divorce is filed, and the Court is required to make initial custody determination, the Georgia courts follow the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under this act, if children are involved and the parents are residing in the different states, the emphasis is placed on the “home state” of the child or children. O.C.G.A. section 19-9-41(7) defines the “Home State” as follows: “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.”

Going through divorce is never an easy process, especially when you are dealing with a spouse who is residing out of state. However, you do not have to do this alone. Our attorneys at Coleman Legal Group, LLC have over fourteen years of experience dealing with clients with similar problems like yours. If you are in the process of filing for divorce, call us today at 770-609-1247.

bottom