In most divorces, the decision of where to file is not terribly difficult. You file in the county and state where you live, where you lived as husband and wife. A wrench (sometimes small, sometimes large) is thrown into the divorce plans, however, when the divorcing spouses do not live in the same county and/or state.
If that’s the case, where do you file for divorce? Which court has jurisdiction? As is often the case when discussing the law, the answer is “it depends.”
Jurisdiction is the legal authority of a court to hear and determine a particular type of case and/or issue. Personal (in personam) jurisdiction and subject matter (in rem) jurisdiction are two separate types of jurisdiction which are implicated in a divorce action.
For purposes of merely granting a divorce, dissolving the legal bond of marriage, the court generally needs only personal jurisdiction over the petitioner. Each state has its own residency requirements which must be met before someone can file a divorce petition in its courts. Residency terms vary from 30 days to a year, depending on the state.
In order to grant the divorce, the court need not have personal jurisdiction over both parties – one is sufficient. So, if the non-resident spouse never submits to the jurisdiction of the court, the divorce will still be valid (at least with regard to jurisdictional issues).
If, however, the parties have marital property to distribute, debts to divide, children for whom custody and child support must be determined or a request for spousal support, the family court will look to establish personal jurisdiction over both the petitioner and respondent. All of those issues require the court to order both parties to do certain things – transfer property, pay support, abide by custody plans. For the court to make those orders enforceable, it must have personal jurisdiction over both parties.
A non-resident party can voluntarily submit to the jurisdiction of the court. Otherwise, constitutional law will require petitioner to demonstrate that the respondent has sufficient contacts with the state to justify jurisdiction. Owning property in the state, traveling frequently in the state, registering automobiles in the state, working in the state – all potentially sufficient contacts to give the court jurisdiction.
It is possible for two different states to have jurisdiction over a divorce case (or aspects of that case). In the event that more than one state has jurisdiction and the parties cannot decide which court in which to proceed, there will have to be a determination of the appropriate venue. Venue refers to which state court is the right one for holding a trial when more than one court has subject matter jurisdiction. Venue will generally be appropriate in the state or county with more meaningful contacts with the subject matter.
Jurisdiction over child custody matters is determined by the Uniform Child Custody Jurisdiction And Enforcement Act (“UCCJEA”). The UCCJEA has been adopted by 48 U.S. States, the District of Columbia, Guam, and the U.S. Virgin Islands. Massachusetts and Vermont still follow an earlier version of the law referred to as UCCJA.
The UCCJEA vests “exclusive [and] continuing jurisdiction” for child custody litigation in the courts of the child’s “home state,” which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months). If the child has not lived in any state for at least six months, then a court in a state that has (1) “significant connections” with the child and at least one parent and (2) “substantial evidence concerning the child’s care, protection, training, and personal relationships” may assume child-custody jurisdiction. If more than one state has “significant connections” and “substantial evidence…”, the courts of those states must communicate and determine which state has the most significant connections to the child.
A court which has made a child-custody determination consistent with UCCJEA has exclusive, continuing jurisdiction over the determination until either (1) that court determines that neither the child, the child’s parents, nor any person acting as a parent has a significant connection with the State that made the original order and that substantial evidence is no longer available in the State concerning the child’s care, protection, training, and personal relationships, or (2) that court or a court of another State determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the State that initially made the child custody order.”
Clearly, the jurisdictional issues that are raised when parties to a divorce reside in different states are many. These issues can be very complex and very costly – especially when emotions run high and parties are using jurisdictional legal differences to try to obtain superior position in the litigation and/or negotiations.