Can I Return to My Home State to File for Divorce or Must I File in California

I am from Texas and my husband is from California. We got married in Texas and then moved to California. We had our baby in California as well and now I am seeking out divorce and seeing if I can get a divorce in Texas and avoid filing for divorce in California and getting stuck in California.

ANSWER:  You generally must file for divorce in the state where you currently reside. Since you are living in California, you arerequired to file for divorce here. It does not matter where you got married. California law requires that at least one spouse be a resident of the state for six months and a resident of the county for three months before filing for divorce.

Filing for divorce in Texas would require you to establish residency there. Texas law requires that you or your spouse must have lived in Texas for at least six months and in the county where you plan to file for at least 90 days. If you haven’t met these residency requirements, you would need to move to Texas and live there for the required period before filing a divorce.

However, under California law a person who does not meet the residency requirements can file for a legal separation, and later change the legal separation petition to a divorce petition. I am a California lawyer and cannot give legal advice about Texas law, but you may wish to determine if Texas has a similar law allowing you to file a legal separation in Texas.

In your case, it may be advisable to file for divorce in California to avoid delays. If you have minor children your matter will be complicated. If you want to leave the state with the children and your spouse is opposed then the court will have to decide what is in the best interests of your child.