Question:
I filed for divorce from my wife in the state where we both lived. We both now live in another state and the divorce case is still pending. While in the state we originally filed (Georgia), we signed an agreement in mediation outlining child custody, child support, etc., but it was never entered as a court order.
My question is now that we are both residents of another state (New York), can she re-file for divorce in this state? If she does re-file, is the mediation agreement binding and enforceable though it was done in another state and never formalized?
Answer:
To answer your questions quickly and directly, you may be able to re-file, if you meet New York’s jurisdiction requirements, but it may not be advantageous or cost-effective to move the case.
The mediation agreement, as it is, is not binding or enforceable, and it will probably be stronger if you keep the case in Georgia. If custody and placement is contested, Georgia probably still has jurisdiction, but that may change. However, I do not practice in New York or Georgia, so I can only speak in generalities based on my experience.
Jurisdiction is required, and determined separately, for the divorce as a whole and in order for the court to have authority to issue orders on custody and placement.
Many states have jurisdiction requirements that you must meet prior to filing for divorce. These requirements range from 6 months to 30 days. These requirements must be met prior to even filing for divorce.
Additionally, you cannot have two simultaneous cases addressing the same issues. Since another case is still pending in Georgia, you would likely have to agree to dismiss the Georgia case before the New York case could be filed.
In most jurisdictions, the mediation agreement is not binding until it is accepted and ordered by a court. It can be used as evidence if the issues are contested later, to show what a party thought was reasonable at the time. It can paint that dissenting party in an unfavorable light if they changed their mind for an unreasonable reason. If and when the divorce is finalized in Georgia, the judgment and custody orders will be enforceable in New York.
Re-filing would likely be completely starting over. Whether it is advantageous to re-file depends in part on why your case in Georgia has stalled.
Your options are dependent on the specific facts in your case and the rules in both jurisdictions. I do not practice in New York or Georgia, so I cannot inform you as to the state’s specific laws.
You should contact an attorney who is licensed in your state to further discuss the specifics of your situation. Cordell & Cordell does represent clients nationwide. Thank you for submitting your question.
Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.
