WHAT DOES RESIDENCY MEAN FOR THE PURPOSES OF FILING FOR DIVORCE?

"FAMILY CODE 2320. A judgment of dissolution of marriage/partnership may not be entered unless one of the parties to the marriage/partnership has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition."

That's what the law says, but what does "being a resident" of a particular place mean? Residence is obvious for most people in most cases. It's where you consistently sleep, shower, eat, receive mail, utilities, etc. It is where you tell your bank, school, kids' school, Uncle Sam, etc. you live. It is NOT where your mom lives. It is NOT where you used to live, where your girlfriend lives, where you want to live, where you intend to live or where you sometimes live. Unfortunately, it is also not always that simple to determine residence for the purposes of a divorce.

What if you leave the marital apartment in Redondo and go to stay with Mom in Riverside? Does that mean you have to wait 3 months before filing in Riverside? Not if your spouse/partner stays put in Redondo and you can prove that. You can then file in LA county immediately on the strength of your spouse/partner's continuing residence there, but you must be able to prove that residence if your spouse/partner will later say that s/he did not remain in Redondo.

What if you hold on to the marriage/partnership until the Redondo apartment lease expire and then you go to mom's in Riverside and at the same time your spouse/partner goes to stay with a friend in San Diego - or back to Indiana? Then you'd have to wait until one of you (it should be you) has completed the 3-month county residence requirement before you could file for a divorce. If you or your spouse/partner moves out of state, then of course that person has lost state residency and may be able to file a California divorce on the strength of the spouse/partner's continued residence in a California county or may have to wait until residency has been satisfied in that other state.

And this is where many people get into trouble because they don't want to wait. They will claim that they have been living at mom's in Riverside for 3 months when they haven't - because they think that mom will back them up - and she will of course, but when the spouse/partner's lawyer attacks your filing on the basis of flawed residency, unless you can prove your residence, you've got problems. Your case will be dismissed and you're looking at criminal perjury charges. Don't do it. And if you think that this won't happen, you're absolutely wrong. It always happens when problems arise. Your spouse/partner might even have been happy for you to lie to the court - until that dispute about child support or the truck arises. Residency is then the first thing to be attacked.

An interesting potential solution to this type of situation is that while divorce has a residency requirement, legal separation does not. Therefore, you may file for a legal separation, even though that is not your intended result, without any need to state or prove residence. Later when you have completed the divorce residency requirements, you can file an amended petition to switch your legal separation to a divorce, and the time you've served towards the legal separation is counted towards the 6-months minimum waiting period for the divorce. NetDivorce doesn't handle legal separation. So if you need to pursue that procedure or if you have any question about your residency or where you should file your divorce case, definitely consult a lawyer before proceeding.