My Spouse and I Live in Different States; Where Should We Divorce?
For most people, divorce is not the first step when a relationship begins to break down. Couples try to work through their differences, go to couple’s counseling, and may even give trial separation a go. Parties often live separately before finally filing for divorce, sometimes for years. If you and your spouse live in different states, where can you file for divorce? Where should you file? Read on for a discussion of where divorce actions can and should be held, and call a knowledgeable New Jersey divorce lawyer for help with a divorce or other family law matter.
Where Can You File?
To hear a divorce case, the court must have “jurisdiction” over that case and those parties. Courts must have both “subject matter” and “personal” jurisdiction. Subject matter jurisdiction means that the court must be empowered to hear that type of case–in New Jersey, for example, divorces are heard in the Family Division of the Supreme Court at the county court level.
Personal jurisdiction concerns whether the court has jurisdiction over the parties. Typically, if you are filing for divorce and you and your spouse live in different states, you will be deciding whether to file in the state in which you reside or the state where your spouse resides. Personal jurisdiction depends on having “minimum contacts” with the state in which the court is located. A married couple in New Jersey, for example, should not be filing for divorce in Hawaii if they have no connection to the state.
Most states have a minimum residency requirement to file for divorce. To file for divorce in New Jersey, for example, either spouse must have been a resident of the state for at least a year before filing for divorce. Oddly enough, there is an exception: If the grounds for divorce is adultery, then the only requirement is that at least one spouse currently resides in New Jersey, for any period. Other states have different residency requirements. Typically, you can file for divorce in either state in which you or your spouse satisfies the residency requirement.
Where Should You File?
Whether you should file for divorce in your state or theirs is a more complicated question. You generally have the right to file in New Jersey if you live in New Jersey, even if your spouse does not. Nowadays, technology makes handling a divorce matter involving someone in another state all the more doable. Your spouse’s attorney can likely handle most, if not all, of their court appearances without their presence. The coronavirus pandemic has also led to an increase in the use of video conferencing for court appearances, which means that it does not really matter where any of the parties live.
There are complicating factors, however. If child custody is at issue in the divorce, then courts will prefer the divorce and custody matter be heard in the home state of the child (wherever the child has lived for more than six months, if applicable). If your kids live with your spouse in another state, even though you live in New Jersey and the New Jersey court would technically have jurisdiction, your co-parent might be able to successfully have the case transferred to a court in their state, where the children reside.
If you are considering divorce, speak with a dedicated New Jersey divorce lawyer as soon as possible to discuss your options. Filing first may give you the advantage in establishing the location of the case, and it is important to understand your legal rights.
Advice and Representation From a Trusted New Jersey Divorce Lawyer
If you need serious and dedicated legal help with property division, child support, alimony, divorce, or other family law matters in New Jersey, contact the Union offices of family law attorney John B. D’Alessandro at 908-964-0102.