Divorce & Jurisdiction

By Heather Frances J.D.

State laws vary when it comes to obtaining a divorce, so it may be tempting to file for divorce in the state with the procedures most friendly to your case. But a court must have proper jurisdiction to address the cases before it, so not every court has authority to grant you a divorce and rule on the issues involved. Generally, you must file in the state where you or your spouse meets residency requirements.

Jurisdiction and Venue

Jurisdiction refers to the court’s authority to hear a case as determined by its legal boundaries. A court with jurisdiction to hear a divorce has the right to grant the divorce itself, and the court often has authority to enter orders addressing related matters such as spousal support, child custody and property division. Venue refers to the proper geographical area in which a spouse can file. For example, if you live in New York City and have no ties to upstate New York, upstate New York would not be the proper venue for your case. Your spouse could get the case dismissed or moved if it is not filed in the proper venue. In most cases, venue is proper in the county where you or your spouse live.

Achieving Jurisdiction

Typically, a court obtains jurisdiction over a divorce case when at least one spouse meets requirements established by state law. Commonly, the filing spouse must meet certain residency requirements and the non-filing spouse must be properly served with the divorce documents or must accept service. For example, Ohio requires the filing spouse to live in the state for at least six months and in one Ohio county for at least 90 days before filing.

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Choosing Between Jurisdictions

When one spouse relocates prior to the divorce, more than one court may have jurisdiction over the couple’s divorce. If a significant portion of the couple’s property is located in a different state from where one of the spouses has established residency, the court where the property is located may have jurisdiction to hear the divorce itself but may lack jurisdiction to address economic or support issues. If you can file in more than one state, because you and your spouse meet residency requirements, you might choose the one that best suits your marriage in terms of alimony laws, property division, grounds and waiting periods. If one spouse files in her new state but her spouse lives in a different state, she may not be able to properly serve him with the divorce paperwork, and the court in the new state may not have jurisdiction to decide the entire case. However, if she complies with the state's required service attempts, such as service by publishing a notice in the newspaper, the court will at least be able to grant her the divorce decree itself. A state might obtain jurisdiction under its “long-arm” statute, which gives the court jurisdiction to decide a case if the defendant spouse has sufficient contacts with the state even if he could not be served there. Courts can also waive jurisdiction if the court in another state would be the more appropriate forum. If your divorce case involves complicated jurisdictional issues, seek professional guidance.

Jurisdiction and Children

Jurisdiction over a couple’s children is a separate issue from whether the court has jurisdiction over the divorce case, though it may simplify the case when the same court has jurisdiction over both matters. Under the Uniform Child Custody Jurisdiction and Enforcement Act, a state cannot decide custody matters in a divorce unless it is the child's home state -- where the child has lived for at least six months -- or was the child's home state within six months of the time when the case was filed, and a parent continues to live there. There may be jurisdictional exceptions for emergency situations.

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How to Get a Divorce Out of State
 

References

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Uniform Child Custody Jurisdiction Act in Virginia

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I Am in North Carolina & My Wife Is in California: Can I Still Get a Divorce?

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