Susan from California asked, “Can I file for divorce in California if my husband lives in New York? Or, do I have to file in New York?” The answer is that there’s no easy and straightforward answer. Maybe yes, maybe no and maybe in both. It just depends upon the facts of Susan’s situation, the laws of California and the laws of New York. It revolves around the questions of which state has jurisdiction to enter an enforceable order that handles each legal issue involved in the divorce and which state has proper venue if both states could have jurisdiction.
Jurisdiction is the power and authority that a court or a judge has to hear and determine a particular type of case and issue. Personal (in personam) jurisdiction and subject matter (in rem) jurisdiction are the two types that most frequently come up in an interstate divorce.
A court has to have personal jurisdiction over “the person” of each party to a lawsuit in order to enter an enforceable judgment. This means that each person must have been properly served notice of the pending lawsuit and, in some instances, must submit to the jurisdiction of the court by filing an entry of appearance in the court file.
Subject matter jurisdiction is the power of the court to enter an enforceable order regarding the issues in a divorce. Examples of issues are: child custody, disposition of certain types of property, child support, and spousal support. The court must also have the statutory authority to hear a family law case.
Venue refers to which state court is the right one for holding a trial when more than one court has subject matter jurisdiction. A court may have jurisdiction without venue. It cannot have venue without jurisdiction.
In Sally’s case, for example, she and her husband had been separated for several years. Sally had moved to California two years ago and her husband had remained in New York. She didn’t know where he presently lived in New York because he had moved over a year ago without giving her a new address. They had no property together, no children, and neither of them needed support from the other.
In essence Sally had become “unofficially divorced” over two years ago. Now, she just wanted to make her “divorce” official and legal. She filed for divorce in California and requested that the divorce papers be served by a process server in New York at the last address she had for her husband. The process server couldn’t locate her husband, so the papers were returned to the California court as unserved (non est). Sally’s next step was to give her husband notice of the divorce action through “service by publication”, a legal process involving the running of a written notice of the lawsuit in appropriate legal newspapers. Upon completion of the publication process, Sally’s lawyer helped her get a legal divorce, and Sally is now legally a single person.
Sally’s situation was relatively simple compared to what occurs in some divorces. Take Jeri and James’ divorce for example. Jeri and James were married in their high school hometown in Iowa, lived there for six years, and had two children. As part of his job, James was transferred to Illinois.
The family sold their home in Iowa, bought a new one in Illinois and everyone settled into their new home and community. Jeri traded in her Iowa driver’s license for an Illinois one. The children began attending school. Five months after the move to Illinois, Jeri received a letter from a lawyer saying that her husband was going to file for divorce and wanted to mediate the divorce instead of litigation.
When confronted, her husband admitted that he had been having a relationship with a coworker for a number of years and had arranged the transfer to be with her when he found out she was being transferred to Illinois. He also admitted that he had planned to wait until they lived in Illinois to file for divorce because he had been told that it would be better for him to get a divorce in Illinois rather than in Iowa.
Jeri called an experienced divorce lawyer in her Iowa hometown and told him the story. He advised her of her choices based upon the jurisdiction of each state, particularly about which state had jurisdiction over child custody. She packed up her children, some personal belongings, and returned to her hometown in Iowa. Her soon-to-be ex-husband arrived home that night to find a note telling him where she and the children could be reached.
To make a long story short, their divorce lasted a long time and cost them each a lot of money, much of it over which state had jurisdiction and proper venue to deal with the issue of child custody. Six years, many hearings, two trials, two appeals, and over $100,000 in legal fees later, they agreed to settle the custody issue.
Their legal battle was over jurisdiction and venue. Their personal agenda was probably something else.
In cases like Jeri and James’, there is a law called the Uniform Child Custody Jurisdiction Act (UCCJA) that plays a part in determining which state has jurisdiction and venue. The UCCJA is a federal act that has been adopted, in full or in a version thereof, by most of the states and is a part of the family law statutes.
There’s another federal law that came into the picture in Jeri and James’ case. It’s the Parental Kidnapping Prevention Act (PKPA) which also deals, in part, with which state has jurisdiction to make a child custody decision when a parent removes a child from the other parent’s custody without that parent’s permission.
Another example of subject matter jurisdiction can be told in the case of Sue and Frank. They were married in Missouri and had a child in Missouri, moved to Texas, got divorced in Texas where Sue got custody of their child and Frank was ordered to pay her support. Then Sue and their child returned to Missouri, with Frank’s permission.
Several years later, when their child was a senior in high school, Sue filed a motion to modify the Texas divorce judgment in the Missouri court asking the Missouri court to increase the amount of child support and to extend the date for termination of the support obligation to comply with Missouri law instead of Texas law. Her ex-husband was served the Missouri papers and hired a Missouri lawyer to contest subject matter jurisdiction.
The Missouri court modified the Texas judgment, using Texas law–not Missouri law. The Missouri court used the power conferred upon it in accordance with the Uniform Interstate Family Support Act, another federal act, of which Missouri and Texas had each adopted its own version.
By now you probably realize that interstate divorces can either be very simple and relatively inexpensive or very complex and very, very expensive. It all depends upon the facts of each marriage, the laws of each state, the issues to be litigated, the legal opinion you get from a lawyer about which state is more advantageous to your position, the state that is most likely to win any battle over jurisdiction and venue, your spouse’s position on any contested issues, and whether the possible outcome will be worth the risk and cost to you, your spouse, or to your combined estate.