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Jurisdiction in divorce: Why it matters

Dear Clients and Friends,

There are countless issues that can impact your post-divorce life. One issue that a lot of people don’t think about, but which can have an especially significant impact, is which state has the power to oversee your divorce.

This is because different states can take very different approaches to how they value and divide up marital property, how they determine whether one of the spouses should pay alimony and how much, how they interpret and enforce prenuptial and postnuptial agreements, and how they determine custody and visitation issues.

For example, some states are “community property” states, where any property acquired during marriage, except for gifts and inheritances, is considered to be owned jointly by both partners, while any property brought into the marriage is separate property of the individual spouse. Upon divorce, all marital property is divided up equally while each spouse keeps their separate property.

Meanwhile, other states follow “equitable distribution” rules, which means any property acquired during marriage is divided up equitably — in other words, fairly under the circumstances — but not necessary equally. One spouse can be ordered to give up some of their separate property to make things fair to the other spouse.

As for custody, different states may emphasize different factors in determining what’s in a child’s best interest, and regarding alimony, states may have different ways of calculating obligations and determining when the obligation to pay terminates.

Whatever the issue, determining proper jurisdiction can be complicated and may not always go the way you anticipated.

Take, for example, a recent case in Tennessee. A couple got married there in 2014 but soon moved to Missouri, where they had two kids together. Four years later, the husband lost his job and they moved back to Tennessee to live with the wife’s parents. The marriage was shaky, however, and that same year the wife filed for divorce in the county where they married, claiming “irreconcilable differences.”

The husband then challenged Tennessee jurisdiction. He argued that Missouri should have jurisdiction because they had not lived in Tennessee long enough to establish residency and because the acts the wife cited as demonstrating irreconcilable differences occurred in Missouri. He also argued that it was inappropriate for a Tennessee court to consider custody issues because it was not the children’s home state.

A family court judge ruled that Tennessee had jurisdiction, finding that with respect to the divorce judgment, the wife was a Tennessee resident when the divorce broke down, even if the husband wasn’t. As for custody, the judge ruled that Missouri didn’t qualify as the children’s home state since the husband had sold their house in Missouri and the children no longer had a home there. That meant Tennessee could have jurisdiction because it provided a more appropriate forum to resolve disputes.

The Tennessee Court of Appeals upheld the decision, emphasizing that jurisdiction made sense because at least one parent was living there when the divorce began.

Another case, from South Carolina, shows that if you want to be considered a resident of a state for jurisdiction purposes, you need to take steps to establish legitimate residence.

There, a husband who filed for divorce expected his parents’ South Carolina home to serve as his residence. Prior to the divorce, the husband, a pilot, returned to the marital residence in North Carolina whenever his military service and airline employment permitted, and he was involved in local North Carolina politics and did not cancel his voter registration there until a few weeks before filing for divorce.

He filed for divorce in South Carolina on grounds of adultery. Jurisdiction may, in fact, have been particularly important to him because South Carolina prevents unfaithful spouses from receiving alimony. But a family court dismissed his case, finding that he couldn’t show he was a South Carolina resident for a year before filing and rejecting his argument that his military service and work kept him away from the state. The judge also ordered that he pay the attorney fees his wife incurred challenging the filing. The South Carolina Court of Appeals upheld the decision.

We continue to invite you all to utilize our free phone case evaluation on any of your legal family law challenges and look forward to hearing from you.



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