CLIENT PAGE
Out of State
What you need to consider if you are contemplating a move and filing for divorce.
By Laura Hayes and Jordan Turk
Moving is inevitable. A spouse gets a new job. One spouse wants to be
closer to his or her parents. Families relocate across state lines every
day, and usually the last thing that a spouse thinks about is how this
move could impact a future divorce proceeding. But, this is something
that you can—and should—consider prior to moving. No two states are the
same, and some are drastically different in what they offer to divorcing
couples. For instance, one state might favor the awarding of alimony,
while another makes it very difficult to obtain. One state might force
the parent required to pay child support to pay thousands more in
monthly payments than a neighboring state. Where you file for divorce
matters.
What is jurisdiction?
Jurisdiction is the authority given to courts to hear certain types of
cases. In order to obtain jurisdiction over a divorce suit, many states
have residency requirements that must be met prior to filing a petition
for divorce. This is known as subject-matter jurisdiction.
The requirements for subject-matter jurisdiction vary from state to
state. For instance, Texas requires that one spouse must be a resident
of the state for at least six months and a resident of a particular
county for at least 90 days prior to filing for divorce. In contrast,
Washington has no such requirement; you could move there and file for
divorce the very next day. Arkansas requires only 60 days.
Now, just because you have proper subject-matter jurisdiction does not
mean that the court can divide your property or make orders regarding
custody. A lack of personal jurisdiction (e.g., one spouse has had no
presence in the filing state) means that a court will be able to grant
you a divorce, but will likely not be able to divide property, allocate
debts, or issue custody orders.
What if a spouse moves to a different state?
Let’s say the spouses were married in Texas and continued to live in
Texas for the next 15 years. The wife starts contemplating filing for
divorce. She clearly meets the requirements to file in Texas. But does
it benefit her to file in Texas?
Texas does not have traditional alimony, and spousal maintenance is hard
to obtain. Frankly, there are other states that could favor the wife in
the above scenario more so than Texas. For instance, let’s say that the
couple travels to Chicago a few times each year to visit family, and the
wife tells the husband she is going to spend a few months in Illinois to
help out with her parents. The husband agrees, not thinking anything is
amiss. The wife files for divorce in Illinois after 90 days, which is
the residency requirement for the state. If this occurs, the husband
potentially would have to travel to Illinois for divorce proceedings,
and the wife might be entitled to alimony that she would otherwise not
be able to obtain in Texas.
What if the spouses already live in different states?
When spouses reside in different states, things can get
complicated—and costly. If the husband lives in California and the wife
lives in Massachusetts, which state has jurisdiction over the divorce?
If both have met the residency requirements for their respective states,
either state can hear the case—it simply becomes a race to file and
serve the petition for divorce on the other spouse. However, the wife,
despite living in Massachusetts, can still file for divorce in
California because the husband met the specific residency requirements.
In this instance, a spouse should consult with attorneys from both
states to determine which one would be more favorable based upon the
specific goals and needs of each party.
Is your case guaranteed to stay in the state in which the initial
petition was filed?
Just because a spouse files for divorce in a different state does not
necessarily mean that your case is stuck there. For instance, if the
wife left the husband and kids in Texas and moved to Washington, where
she can essentially file for divorce immediately, the husband could ask
the Washington court to decline jurisdiction of the wife’s suit and let
the husband proceed with the divorce in Texas because all of the
parties’ property is essentially in Texas, as are the relevant witnesses
regarding the children and the marriage. However, asking a court to
decline jurisdiction is never a guarantee and can be expensive to
litigate.
In short, always be suspicious of a spouse who wants to move or make
an extended visit to a different state. If you are contemplating a move
across state lines, do your research on divorce laws and make sure you
are going in with your eyes wide open.TBJ
LAURA HAYES
is a shareholder in KoonsFuller in Dallas, where she assists clients
with family law, divorce, child custody, and all related matters. She is
certified in family law by the Texas Board of Legal Specialization.
JORDAN TURK
is an associate
of KoonsFuller in Houston, where she assists clients with family law,
including divorce and child custody. In 2019, she was honored with the
Outstanding Service by an Individual Award at the Harris County Bench
Bar Pro Bono Awards.