Introduction

It is still possible to file for divorce even if your spouse is currently out of state.

There are generally two main scenarios where you want to file for divorce while your spouse is out of state: (1) you are living in the state by your spouse’s agreement or participation, but he or she happens to not be living in the state at the time; and (2) you and your spouse were living in another state, but you have since moved to this state.

Personal Jurisdiction

Whether you can file for divorce when your spouse is out of state largely depends on whether the courts will have jurisdiction over your spouse.

In Arizona, this is a two-part analysis. The first question is whether you or your spouse has lived in Arizona for at least 90 days prior to filing for divorce. This is a statutory requirement that the court has to find in order to grant the divorce.

Presumably, this will be true in your case because most likely you have been living in state for at least 90 days and want to file for divorce even though your spouse is out of state. However, this certainly will impact people under the second scenario, where you have only lived in state for a brief period of time. More on that to come.

Jurisdiction Over Your Spouse Out of State

The next part is whether the court has personal jurisdiction over your spouse, and thus, is able to grant a divorce and enter orders for support and/or division of property. Without personal jurisdiction, the most a court can do is grant a divorce, but not enter any financial related orders.

Whether the court will have personal jurisdiction over your spouse will depend on the level of “contacts” your spouse has with the state.

Spouse Temporarily Away for Work

For example, if your spouse has been living in the state and has only recently moved away, or is only temporarily away (such as for work), then your spouse’s domicile or residence will be in state and the court will have jurisdiction.

Things start to get gray when your spouse has not lived in state for a long time, or perhaps has never lived in the state. Even if this is the case, the court may still have jurisdiction over your spouse if your spouse has sufficient contacts.

Spouse Has Not Moved Here Yet

For instance, I have seen cases where the court finds it has jurisdiction where the spouse may not have lived in state, but based on the plans of the parties the spouse living in state moved here and the other spouse was supposed to move but never did.

No Contacts At All

In another case, in which I was involved, the person here in state filed and the other spouse never set foot in Arizona and had no intention or involvement of living here, nor having the spouse here be here at all. Under those circumstances, the court found that it did not have jurisdiction of the spouse out of state.

Property Ties

In other cases that I have seen, the court can find it has jurisdiction over a spouse out of state if that spouse has property and business involvement in the state.

Two Scenarios

Under the scenario where you are living here in state and your spouse is out of state, the court will have jurisdiction over you and able to grant the divorce. The only question is whether the court will have jurisdiction of your out of state spouse. It all depends on the level of contacts your spouse has with Arizona. In this case, it is the more the merrier.

Under the scenarios where you were living in another state with your spouse and only recently moved in state, chances are you will not be able to file for divorce when your spouse is out of state. At a minimum, for Arizona you would need to live in state for a consecutive 90 days before filing, as mentioned above.

No Forum Shopping

This is a common statutory mechanism to prevent people from what is called forum shopping and quickly moving to a state and filing for divorce.

Even if you have lived in state for more than 90 days, if your spouse has no contacts with Arizona and had no role to play in you living in state, then it will be more difficult to get jurisdiction and obtain a divorce when your spouse is out of state.

Out of State Spouse Can Consent

However, it is always possible that your spouse would agree to jurisdiction. So long as you meet the 90-day requirement, your spouse can agree to jurisdiction, even if the court would otherwise not find it has it.

This can happen for a variety of reasons, whether it be your spouse maybe wants to move into the state, or believes that the state’s laws might even be advantageous, or maybe does not have any other state that would work to file for divorce.

Summary

In conclusion, you can file for divorce when your spouse is out of state. The main concern is whether the court will grant the divorce. This will require that you meet the minimum requirements for living in Arizona, as well as the court having jurisdiction over your spouse. If the court finds it has jurisdiction or your spouse agrees to jurisdiction, then you can proceed with your divorce in Arizona.

If you have more questions or a slightly different scenario you’d like to know more about, feel free to contact me here.