My wife and I live in different states after she moved away with our children without my consent. She said she did it to avoid a divorce and I can’t file if we live in different states. Is this true?
I’m confused by jurisdiction and where to file for divorce since neither of us live in the state we were married in, and we both have lived in our new states for only a short amount of time. So where do I file for divorce?
Also, since we are still married, would her actions constitute kidnapping? At the very least, how will they help me in my child custody battle?
Jurisdictional and venue factors – the “where can I file” factors – are different for each state. Generally, the court must have subject matter jurisdiction over the case itself and personal jurisdiction over the parties to a divorce.
Subject matter jurisdiction means the court has power over the nature of the case and the type of relief sought, i.e., a divorce. Personal jurisdiction means that the court has the power to enforce its decisions against the parties.
Where I practice, state courts have jurisdiction to grant a divorce to any married person who lives in the state, regardless of where the other party lives. Essentially, your marriage exists in each state you and your wife reside so if either state has similar laws then those states would have jurisdiction to hear your divorce.
Some states, however, are restricted as to what property the court has the power to divide. Specifically, a court can make a ruling regarding property outside of its jurisdiction, but likely has no power to enforce the ruling.
Venue is another consideration. Venue refers to the actual place where the divorce will proceed. Venue is usually proper in any county where a party resides.
Where I practice, for instance, a person seeking a divorce must make certain allegations regarding venue. Specifically, they must say that they have lived in the state and county they are filing in for the six months preceding the suit.
With all this information in mind, it is likely that your divorce can be brought in either state, in the county you live in or the county your wife lives in. You may also want to consider where the children are. There are typically requirements that allegations be made as to the residence of the children in order to show the court has jurisdiction to make rulings as to their best interests as well.
As for your wife moving the children out-of-state without your consent, depending on the applicable law, her actions may constitute kidnapping.
At the very least, her actions may shift the court in your favor as you litigate issues of child custody, visitation, and child support. If you can show that she has acted irrationally or against their best interests, you may gain some ground in accomplishing your goals.
I strongly recommend you seek the assistance of a skilled divorce lawyer for men as you move forward.