During the divorce process, the home field does not always have the advantage. Admittedly, if you file in your home state, you minimize your travel costs and maximize the chances that someone knows, and can give you insight, on your attorney, your wife’s attorney, your judge and your court officers. Less cost and more familiarity are obvious advantages.
But, what if your home state is the proverbial outdoor stadium in the middle of a blizzard? It could be, compared to your options. Believe it or not, you may be able to file someplace else and, by doing so, maximize your chances for a favorable outcome in your divorce.
There are two concepts that interplay when picking a place to file for divorce. The first, most basic, is subject matter jurisdiction. Subject matter jurisdiction refers to the court’s reach (that is, jurisdiction) over the topic (that is, subject) of your case. In other words, you must file your case in a court that handles divorces. (This also explains why your wife cannot file in probate court where her friends work or small claims court where her friend got a good result in another lawsuit.)
The second, and more important for you, is personal jurisdiction. Personal jurisdiction refers to the court’s reach (again, jurisdiction) over the litigants (you and your wife). Generally, one of you must reside in the state for the court to have personal jurisdiction – but, believe it or not, not both of you. If you and your wife reside in separate states, or, in some states, counties, where you file can make or break your case. Given options for filing, what should you do? Ask these questions:
What is the 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, 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 – rather, 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.
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 not devoted to waiting – rather, this is the time to work 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. If you are looking to complete the divorce quickly, chose the later, to reconcile, the former.
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, 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 ASAP to weigh the costs of bifurcation against its benefits. A firm with offices nationwide, like those of us working in the Primerus network of law firms, should be able to give you valuable information about the divorce process in both states or recommend someone to you who can.
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 too 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 in-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.
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.
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.
