Venue and Jurisdiction – Where Should I file for Divorce or Paternity.

Under California Family Code § 2320, a judgment for dissolution of marriage can be entered only if one of the parties to the marriage has been a resident of California for at least six months, and of the county in which the divorce is filed for the three months preceding the filing of the petition. Similarly, California Code of Civil Procedure § 395 allows for proceedings of dissolution of marriage to be tried in the superior court of the county where either the petitioner or respondent has been a resident for three months immediately preceding the commencement of the proceeding. 

Essentially, you can file for divorce in the San Diego County Superior Court if: 1) either you or your spouse has resided in the state of California for a minimum of six months immediately prior to the filing, AND 2) either you or your spouse has resided in San Diego County for a minimum of three months immediately prior to the filing. 

What about my Children? For the Court to have jurisdiction of the children; and therefore Custody, Visitation and Support, the children must have lived in California for six months, unless the Court takes emergency jurisdiction over the children where the children need the Court’s protection.

How do I prove my Residence? The court will determine if it has the power to hear your divorce case if you or your spouse meets the six- and three-month residency requirement. In some cases where residency is not clear, the court will look at your domicile for the months preceding the petition: where you live and your intent to remain in that state and county. Instances like occasional travel for work or owning a vacation home used only once a year may not be enough to establish your domicile, and factors such as where you pay taxes and voter registration may be used to determine your true domicile. However, the court determines based on the facts whether it has jurisdiction over you or your spouse in a divorce proceeding, and a good lawyer will advise you in whether you should file in San Diego County or even in the state of California. 

Do I have options if I cannot meet the residency requirement to file in California or San Diego? 

There are different residency rules for other circumstances. If you cannot file for divorce in a specific county in California because you do not meet the minimum residency requirement, you can file for legal separation as soon as either you or your spouse moves to California. You can amend the Petition for Separation to a Petition for Dissolution, once one spouse meets the six- and three-month residency requirement. 

What about Same-Sex Marriages and Domestic Partnerships? There are different statutes that apply for same-sex marriages and domestic partnerships. For the dissolution of same-sex marriages, you do not have to meet the six- and three-month requirements and can file for divorce in California if 1) you married in California and 2) now reside somewhere where you cannot get divorced. However, the court may not be able to make decisions about property, support, or children. 

To terminate a domestic partnership, neither party must be a resident of California at the time of filing if your partnership is registered in California. However, similarly to same-sex dissolution, if neither partner meets the residency at the time of filing the petition, the court may not be able to make decisions about property, support, or children.

What do I do if neither party lives in California and my spouse files Here? You should contact an attorney immediately to file a motion to quash the summons. You have thirty days to get the motion to quash filed. Time is of the essence here.

The factors to be considered when determining residency for termination of a partnership or marriage, which are complicated and intertwined. It is important to have a qualified attorney to guide you through the process and ensure the best outcome for you and your family.  Livingstone Law has over 28 years of experience in all aspects of divorce. Contact us for a free consultation.