How to Divorce With a Husband in New York & a Wife in Georgia

by Beverly Bird

Living in separate states affords some spouses the luxury of "forum-shopping." Assuming both spouses have met residency requirements in their jurisdiction, they can initiate their divorce in either one. They can weigh the divorce laws in each state and choose one that best suits their purposes and goals. Of course, when spouses don’t get along, residency in different states can complicate the divorce proceedings tremendously.

Establishing Residency

Spouses have the right to choose where to file for divorce only if both have established residency in their respective states. If they lived together in New York when they were married, the husband must have lived there for a year before filing -- this gives New York jurisdiction to grant the divorce. If they never lived in New York together, he must reside there for two years before he can file. The wife can file in Georgia after having lived there for only six months, even if the parties never resided there together.

Comparing Grounds

All states -- including Georgia and New York -- recognize no-fault divorce. In both Georgia and New York, the no-fault grounds is "irretrievable breakdown of the marriage." In New York, the breakdown must have occurred six months before the husband files for divorce. In Georgia, however, the wife must only tell the court she doesn't want to be married anymore. If the spouses have agreed on a marital settlement agreement, file in Georgia and present the agreement to the court for approval, they can be divorced in as little as a month on the no-fault grounds, so Georgia offers a more expeditious divorce in this respect.

Other Factors

In most other respects, the divorce laws in Georgia and New York are very similar. Both are equitable distribution states, so when spouses can't agree on how to separate their marital property, the courts will decide for them in much the same way. Equitable distribution does not always mean a 50/50 division of property -- judges will apportion property in a way that seems fair. Both states calculate child support using the same formula. However, if you have children and you and your spouse are contesting custody, Georgia laws allow a child older than 14 to decide which parent he wants to live with, so this may be a consideration for you. When contested divorces go to trial in Georgia, either spouse has the right to request a jury, rather than trust a single judge with decisions on such important issues.

When Children Are Involved

When one spouse contests the divorce and it is inevitably going to proceed to trial, problems can arise with jurisdiction if the couple has children. Under the terms of the Uniform Child Custody Jurisdiction and Enforcement Act, usually the only state that can make custody decisions is the one where the children have lived for the last six months. If children have been living in Georgia with their mother, the UCCJEA usually prevents New York from deciding issues of custody. In this case, the divorce would have to take place in Georgia. The parents would not really have an option unless the children moved to New York with their father for six months before he filed for divorce there.

Challenging Jurisdiction

Either spouse can challenge against the other state having jurisdiction by filing a motion immediately after the other has filed for divorce there. When this occurs, it generally results in complicated litigation across states lines. Lawyers and judges must try to determine which state should have the right to hear the case and decide the contested issues. Both spouses would have to prove their residency beyond a doubt, usually with witnesses and proof of domicile. "Proof of domicile" means there is no doubt that your particular state is your home -- you vote there, have your driver's license there and have laid down other roots in the state.