It is more common than ever before for couples and families to live in more than one place. Perhaps you have homes in several countries and divide your time amongst them. Or you may spend time at homes in two or more states. Another common scenario involves separation. You and your spouse may have physically separated and are now living in two different states or countries. If you and your spouse live in more than one place or live separately in two areas, deciding where your divorce case will be heard is an important question.
Mobility Between States
If you and your spouse have homes in more than one state, you may be unsure about where you should file for divorce. Each state has its own residency requirements that pertain to divorce filings. Be aware that divorce residency is different from residency for tax purposes.
In some states you must have resided in the state for six months to be considered a resident for divorce filing purposes. In other states, 90 days is all that is required. If you have connections in several states, it pays to investigate each state's residency requirements before you decide where to file for divorce. You might be able to quickly establish residency in certain states.
Where you file for divorce matters because each state has different laws about many aspects of divorce that will deeply affect the outcome of your case. A prime difference is that between community property states and equitable distribution states. In community property states, all assets and debts acquired during the marriage (with some exceptions for things like inheritances and gifts) are split 50/50 between the spouses during the divorce.
On the other hand, equitable distribution states divide assets and debts in a way that the court finds to be fair, but is not necessarily an equal division. There could be a discrepancy of millions of dollars between a community property award and an equitable distribution award. If you could easily establish or prove residency in more than one state, you should talk with your attorney about which state would be optimal for you and your case.
Child custody case jurisdiction is governed by a law called the Uniform Child Custody and Jurisdiction Act (UCCJEA) which is in effect in most states in the U.S. When parents do not live in the same state and there is a custody dispute, the UCCJEA sets out the standard for determining where the case should be heard:
- Six-month rule: The state the child lives in gets jurisdiction if the child has lived in that state continuously for the prior six months.
- Significant connection rule: If the child has not lived in one state for six months, then the state where the child has significant connections (such as the child has gone to school there or has family there) is the place where the custody case must be heard.
- More appropriate forum: If the states in which the child has resided for six months or where the child has significant connections refuse to take jurisdiction because the courts feel another state is a more appropriate forum, then that other state can take jurisdiction and hear the case.
Mobility Between Countries
If you and your spouse move between two or more countries, determining where you should file for divorce can be confusing. In general, you can file for divorce wherever you meet the residency requirements set up by that country’s laws. If you are considering filing in a foreign country, it is important to work with an attorney in that country who can explain the residency requirements there.
You can file in the U.S. if you meet the residency requirements of the specific state in which you would like to file. As with choosing a state, it is important to compare the divorce laws that are in place in the countries where you are considering filing. One country may provide a more favorable situation for you and your case.
When it comes to child custody, the country where the child resides is generally where jurisdiction lies. If your child is abducted by your spouse to another country and you are trying to get them returned, international law determines what will happen. Some countries are signatories to an international agreement called the Hague Convention, which stipulates they will recognize each other’s custody orders. If your spouse lives in a country that is not a signatory to the Hague Convention, it is essential that you obtain legal guidance when it comes to allowing your child to travel to that country.
Speed When Filing
If there are two states or countries where your case could have jurisdiction (such as if you met the residency requirements in New York and your spouse met them in California), whoever files first will establish jurisdiction.
If you are considering getting a divorce and there is the possibility your spouse could file elsewhere, it is very important you talk with an attorney as soon as possible. It may be a wise decision to quickly file the initial papers for the divorce to establish jurisdiction.
Your attorney can then delay the case or even possibly withdraw your filing so that you and your spouse can consider reconciliation, settlement, mediation, or other alternative dispute options. However, jurisdiction will have been decided once the initial filing has occurred, and your case will be heard in your state.