Crossing State Lines: How a Move Could Affect Your Future Divorce and Custody Proceedings

June 17, 2020Alerts

The jurisdiction in which divorce proceedings take place can have a significant impact on child and spousal support, custody arrangements and other key aspects of marital dissolution.

That is why anyone who is divorcing or contemplating divorce, and planning to relocate to a new state, should carefully research the rules and residency requirements of the state in which they currently live, and their future destination.

It is common for individuals in the throes of a divorce to want to move to be closer to family or just to make a fresh start in a new place. Sometimes a spouse returns to his or her parents’ house in another state to temporarily separate and then decides to stay there and file for divorce. However, it is important to consider jurisdictional issues (i.e. where you can file for divorce or a custody case) before contemplating even a temporary move. If children are involved, the location for filing a divorce or custody case depends on several factors including where the child has resided for the six months prior to filing. No two states operate by the same rules, and some states are drastically different in what they offer divorcing couples.

Varying state laws may have a significant financial impact on divorce proceedings. For instance, one state may favor the awarding of alimony, while another does not allow spousal maintenance awards except under very limited and specific circumstances. One state might force a spouse to pay thousands of dollars more in monthly child support than a neighboring state. Some states have maximum child support guidelines for high income earners while other states do not. Where you file a divorce or custody case can have a dramatic effect on the financial outcome for both parties. Understanding the differences between the laws of your current and potential future state before contemplating a relocation is critical to ensuring you can achieve a satisfactory outcome of your divorce or custody proceeding.

Where can I file?

Living in a particular state does not guarantee you can file for divorce or modify a custody case in that jurisdiction. To file a lawsuit in a particular state court, at least one spouse or parent must meet state-specific jurisdictional requirements. In order to take jurisdiction over a divorce suit, many states require the filing party to meet residency requirements prior to initiating divorce or custody proceedings. This is known as “subject-matter jurisdiction.” The requirements for subject-matter jurisdiction vary from state to state. For example, Texas requires a spouse to be a state resident for at least six months and a resident of a particular county for at least 90 days prior to filing for divorce. Likewise, in both Georgia and Florida, one spouse must be a resident for at least six months. In contrast, Washington has no such requirement; you could move there and file for divorce the next day.

Why does residency matter? Imagine this scenario: A family lives in Florida for several years then relocates to Texas for the wife’s job. Exactly three months later, the husband decides he wants a divorce. Technically, the family does not meet the jurisdictional requirements for a divorce filing in either state because they are no longer Florida residents but they have not yet lived in Texas for six months, which is a requirement for meeting the Texas jurisdictional requirements. But if the parties remain in Texas and must litigate their divorce and custody in Florida, it may be costly and travel issues may prevent some of the most important witnesses from testifying. In cases involving multiple states, the parties and the two courts must determine the most convenient forum for the divorce and custody proceedings. If children are involved, the parties should also consider the requirements of the federal Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

When contemplating divorce or a child custody case involving more than one state, individuals must also consider the various state laws that can have a tremendous impact on spousal support, child support and even child possession/parenting time schedules.

For example, imagine a couple who married in Texas and lived in the Lone Star State for the next 15 years. The wife is contemplating filing for divorce. She clearly meets the requirements to file in Texas. But does she benefit by filing there? Texas does not have traditional alimony, and spousal maintenance is hard to obtain. Frankly, other states would be better choices for the wife in this scenario. For instance, let’s say the family has a vacation home in Georgia, and the wife tells the husband she is going to spend a few months in Georgia. The husband agrees, not thinking anything is amiss. A few months later, the wife files for divorce in Georgia and requests spousal support. If this occurs, the husband would potentially need to travel to Georgia for divorce proceedings, and the wife might be entitled to spousal support that she would otherwise not have been able to obtain if the divorce had been filed in Texas. If children are involved in this dispute, the child support calculations in Georgia would also differ from those in Texas. In Texas, child support calculations only consider the income of the parent paying child support while Georgia child support calculations consider both parents’ incomes.

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 Texas, 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. There may be significant financial benefits to filing in one state over another. In addition, if children are involved, in most situations the divorce will have to proceed in the location where the children have lived for the six months prior to filing. In these cases, a spouse should consult with attorneys in both states to determine which would be favorable based upon the specific goals and needs of each party.

Is it possible for a case to change states after the initial petition is filed?

Because you file for divorce in a particular state does not necessarily mean your case will proceed there if you and/or the children reside elsewhere. For example, if a wife left her husband and kids in Texas and moved to Washington, where she can essentially file immediately for divorce, her husband could ask the Washington court to decline jurisdiction and let him proceed with the divorce in Texas because most of the parties’ property and the relevant witnesses regarding the children and the marriage are in that state. Arguing jurisdictional issues before two courts can be time consuming, expensive and is often ultimately within the judge’s discretion if the jurisdictional requirements are met in both states. The expense of litigation is another factor to consider. However, the COVID-19 pandemic may lead to more options in the future for out-of-state litigants to be heard via videoconference rather than incurring interstate litigation travel expenses for routine hearings.

In short, always be wary of a spouse who wants to move or make an extended visit to a different state, especially when children are involved. If you are contemplating a move across state lines, whether or not divorce is foreseeable, do your research on divorce laws and make sure you are aware of the effect a move could have on your division of assets, child support and custody down the road.

COVID-19 and Multiple State Custody Cases

Most state courts have ruled that the pandemic should not be used to limit a parent’s time with children or to modify current, valid court orders. However, COVID-related restrictions, job loss and forced moves are changing lives, and as a result, many families are contemplating filing modifications of custody and child support schedules. Some families are being forced to move for financial reasons related to job loss and the need to move in with family members or find a new job in another state.  Most states have found that the COVID-19 pandemic alone does not constitute a change in circumstances sufficient to modify current orders regarding custody and child support. However, the fallout from COVID-19 may allow for modifications of current orders if one party must move or if traveling between states for custody exchanges becomes more restricted.

Selecting Appropriate Counsel

When considering a divorce involving more than one state, it is advisable to select an attorney who is licensed in multiple states and likely to be more familiar with these complex matters. The attorneys of Fox Rothschild's national Family Law Practice handle divorce proceedings in states from coast-to-coast.

For more information on out-of-state divorces, contact Laura Hayes, who is licensed in Texas, Georgia, Arizona and Florida, and handles multi-state jurisdictional matters, at [email protected] or 214.231.5795.