Dear Clients and Friends,
It is not uncommon for someone getting divorced to think about moving to a different state. Maybe s/he live far away from their parents, childhood friends and extended family and want to go somewhere with a support system. Or maybe they went “home” for a while during a separation and decided to stay, or finally feel free to pursue their dream job and their best opportunities lie elsewhere.
Whatever the reason, you should realize that different states have different laws. This means that depending on which state has jurisdiction over your divorce you could see very different outcomes in terms of how your marital property is split up. In addition, the state with jurisdiction typically has the power to decide related issues like custody and visitation, child support and alimony and, potentially, future disputes if you or your ex seek to modify arrangements. That’s why if you’re contemplating a move in conjunction with a divorce you should discuss all relevant considerations with us.
If you plan on seeking alimony, you may find that the state where you live may not provide for it at all or may have very strict requirements, while the state you want to move to has more generous support laws. One consideration is where you should file. A common mistake is believing one must divorce in the state in which one is married. This is not so.
You may be able to file in another state instead, depending on your new state’s residency requirements. Two states — Alaska and Washington — have no residency requirements at all, while some require that you reside there for as little as 60 days. Others require a full year of residency. California requires that one of the parties to the marriage has been a residente of the State for six months and of the county in which the proceeding is filed for three months prior to the filing of the petition.
If you do plan to file for divorce or avail yourself of the courts in a new state, be aware that you will need to prove your residency by showing a driver’s license, a voter registration card or a residential lease. And remember that if your spouse files for divorce first, the state where he/she lives will get jurisdiction over the proceedings.
If you plan to relocate and you have children, keep in mind that custody jurisdiction can be complicated. Typically the child’s “home state” (the state where the child has been living for at least six months) has jurisdiction over custody matters. But if a different state issued an original custody order, that state could retain the power to decide any modifications if one of the parents still lives there.
Parties can enter agreements as to which state will be considered the “home state” for the purpose of deciding custody issues, but a recent New Jersey case shows us that these agreements have limitations, particularly if real-life facts don’t match what’s on the paper.
In that case, an unmarried woman who lived in Virginia gave birth to “Jimmy.” When Jimmy was almost a year old, his parents entered a “custody and parenting time” agreement that designated the father, who lived in New Jersey, as the parent of primary residence and gave both parents joint legal custody. The agreement also stated that it was governed by New Jersey law and any related disputes would be decided by New Jersey courts.
Several months later, the mother did not bring Jimmy back to New Jersey after her designated parenting time ended. The father went to a New Jersey court seeking an order that the child be returned. The mother argued in response that Jimmy was born in Virginia, enrolled in day care there and resided there, making Virginia his home state for custody purposes. She also claimed the father’s legal paternity was never established. The court still found that New Jersey had jurisdiction over the agreement and ordered Jimmy’s return.
The New Jersey Appellate Division reversed. The appeals court found that the lower court wrongly relied on the agreement between the parents as a basis for jurisdiction. Instead, the court should have determined which state Jimmy was most personally connected with. The trial court will now have to decide what state is Jimmy’s “home state.”
Call us at no cost to see if we can be of help.
Best,
Ron