By Jennifer M. Paine
There are two concepts that interplay when choosing where to file for divorce.
The first is subject matter jurisdiction. Subject matter jurisdiction refers to the court’s reach/jurisdiction over the topic/subject of your case. In other words, you must file your case in a court that handles divorces and not, for example, in probate or small claims court.
The second, and more important for you, is personal jurisdiction. Personal jurisdiction refers to the court’s jurisdiction over the litigants (you and your wife).
Generally, only one of you must reside in the state for the court to have personal jurisdiction.
If you and your wife reside in separate states or even separate counties, depending on your state’s laws, where you file can make or break your case.
Given options for filing, what should you do? Ask these five questions:
1. What is my state’s residency requirement?
Except for a handful of states, one or both of you must reside in the state before filing. If you have recently moved or are in a hurry to get a divorce, be sure to check your state’s residency requirements. These are:
None: Alaska, South Dakota, Washington
6 weeks: Nevada
60 days: Arkansas, Colorado, Kansas, Wyoming
90 days: Arizona, Illinois, Missouri, Montana, Utah
180 days or 6 months: Alabama, California, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Indiana, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Vermont, Virginia, Wisconsin
1 year: Connecticut, Iowa, Maryland, Massachusetts, Nebraska, New Hampshire, New Jersey, New York, Rhode Island, South Carolina, West Virginia
You do not have to file where your wife resides because generally it takes only one of you to reside in the state.
In many of these states, the residency requirement is mandatory, and, without it, the court also does not have subject matter jurisdiction over your case.
This means if you or your wife have not resided in the state long enough but lie about it, the divorce is void from the outset, and you will remain married regardless of a divorce decree saying the contrary.
2. What is the waiting period?
After you have narrowed down your states, look to waiting periods.
In many states, the court will require a period of time, typically called a waiting period, between the date you file for divorce and the date the court will grant one. This time is devoted to working on settlement or prepare for trial, if not reconciliation.
Some states have very long waiting periods (a year or more), whereas others have shorter (6 months) or none.
3. If we have children, where do they reside?
Irrespective of where you and your wife reside, if you have children, where they reside will determine where the child custody portions of your case occur.
Generally, and except for very narrow exceptions for domestic violence and emergencies, the court in the state where the child has resided for at least six months or since birth, whichever is shorter, is the only court that can decide child custody issues.
The idea here, under a uniform act called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), is to prevent parents from fleeing from one state to another in an effort to keep the child from the other parent, achieve a more favorable outcome, or both.
It is possible, although not always practical, to divide your divorce so that the property division and alimony portions occur in one state, whereas the child-related potions occur in another.
Some parents find themselves in this position out of necessity, for example, when one parent files for divorce after abandoning the family, and the other is left with the children and in need of custody and child support orders.
If this is you, then you should talk with a family law attorney immediately to weigh the costs of bifurcation against its benefits. A family law firm with offices nationwide, such as Cordell & Cordell, should be able to give you valuable information about the divorce process in both states or recommend someone to you who can.
4. Where are our assets located?
If your immobile assets are located in one state, then, typically, that is the state that must grant your divorce. In an era of Internet banking and renting this is limited mostly to real estate, and, then, only if the spouse who does not file for divorce also chooses not to participate in the process.
In other words, if you own a home with your wife in State A and you correctly file for divorce in State B but she chooses not to participate, then your judge may not be able to award the home in State A to either of you. Rather, you would have to file a subsequent lawsuit, post-divorce, to divide the home in State A.
Even if real estate is not an issue, you should consider filing in the state where your assets are located. You can keep better watch over them (things tend to “go missing” during a divorce) and can have a better, personal feel for the market if you and your wife dispute appraisals.
5. Do we have any special considerations in our case?
Finally, feel out how the states you are considering handle any special aspects of your case.
If you anticipate defending against an alimony claim, select the state with the shortest alimony lengths, whether by statute or case law. If you are making one, choose the state with broader standards and no caps.
If you own an asset from prior to your marriage that you want to protect, then opt for the state with the stricter standards for invading separate property.
If you have military disability benefits and prefer not to share them, then choose the state that cannot divide them.
If you want to maximize the duration of child support, then select the state with the longer period of coverage (such as to college) than one that terminates child support at age 18 or graduation from high school. And so forth.
Where to file for divorce
If you are faced with multiple states in which you could file, sit down with a family law attorney to discuss the pros and cons in each state, both financial and legal.
You may very well find that the playing field, for any of these reasons, is better on the other side.
Cordell & Cordell:
Jennifer M. Paine is a Michigan Divorce Lawyer with Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.
Ms. Paine received her Bachelor of Arts in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.