by Attorney Eric D. PuryearThe question of where to file for divorce is one that can be complex, especially when a person has moved recently or has a spouse who lives in another state. Selecting the right jurisdiction and venue for the divorce case is important, as incorrect choices can cause significant harm to a person’s case and interests.
Why selecting the right place to file for divorce is so important
When filing for divorce, it is important to select the right location. Filing in the wrong state or county can result in the case being dismissed, which will add expense and delays to the divorce process. Filing in a less-than-ideal location can also cause a person great inconvenience and expense that could have been avoided by filing in the right location. For example, if one spouse lives in California and the other lives in Iowa, there is a distinct advantage to the spouse who lives in the state where the divorce case will take place. Instead of having to travel over a thousands miles to come to court, the local spouse can spend a few minutes driving to the courthouse in their home county.
Jurisdiction and venue
Jurisdiction refers to the correct state in which to file for divorce. Venue refers to filing in the correct county within that state. For example, for married couple that has lived their entire lives in Scott County, Iowa, the correct jurisdiction is the State of Iowa and the correct venue is the County of Scott.
Some states, such as Iowa, have a very long residency requirement for there to be jurisdiction, while other states such as Nevada have a very short requirement. For example, a person must live in Iowa for a year before they can file for divorce in Iowa (although there are exceptions, particularly for those in the military who were absent from Iowa due to military orders).
Sometimes, there is the ability for a divorce case to be filed in multiple states. In such a situation, when the case is filed in one state then that state will become the only state with exclusive and continuing jurisdiction, which is to say that state will be the only case that can then handle the divorce case. For example, if the husband lives in Iowa for a year, and the wife lives in Illinois for a year, and there are no children of the marriage, then jurisdiction would be proper in either state. However, once the husband files in Iowa, then the case will proceed in Iowa and the wife cannot file in Illinois. The reverse would be true if the wife had filed in Illinois first.
Selecting the right venue is also important, with the effect of an incorrect venue varying state-to-state. Generally speaking, a case filed in an incorrect venue can be moved to a correct venue. This issue often arises when one spouse lives in one county and the other spouse lives in another county.
Differences between state laws
Each state has different laws that govern divorce cases and the custody, child support, property distribution, alimony, and other determinations made by the court. As an example, the child support guidelines employed by Illinois and Iowa can result in dramatically different outcomes, especially in situations where shared care of a child is awarded. Illinois and Iowa law also take somewhat different approaches to domestic violence insofar as it affects custody determinations.
The effect children have upon divorce filing locations
When children are involved in a divorce case, the analysis is even more complex. Generally speaking, a divorce case is properly filed in a child’s “home state” which is defined as the state in which the child resided for the previous 6 months. However, there are exceptions to this requirement in cases of parental kidnapping or other similar issues. There are also situations where a person can file for divorce and have the court handle all matters except child-related matters, leaving the child matters reserved for the state in which the child resides.
Where to file for divorce
The right place to file for divorce will depend upon a variety of factors too numerous to list in this article, and turns upon a careful analysis of many different things. A person who is considering filing for divorce where there are multiple possible jurisdictions and venues is well advised to seek an attorney and discuss the matter in detail.