Before you can take the first step to getting a divorce, you must determine the correct location in which to file. The court where you file for divorce must have both subject matter jurisdiction (jurisdiction to decide the particular case) and personal jurisdiction over the parties involved in the case. For example, a small claims court would hear and resolve matters involving a dispute over a few thousand dollars but would not have the legal authority to decide a divorce case or try a felony criminal case. This court lacks subject matter jurisdiction. A court in Florida with subject matter jurisdiction cannot decide how much a person living in Oklahoma should pay in damages, or in child support when the person affected by the decision is not a resident nor perhaps ever had been in Florida. That court lacks personal jurisdiction over the person or persons affected by the lawsuit. To proceed with the divorce, the court must have jurisdiction to grant a divorce and to decide divorce issues. So, for military families, location isn’t as simple as looking at where you’ve lived for the last few months. In general, the states with possible jurisdiction over your divorce will be:
- Those where you and your spouse have currently established residency
- The state where you or your spouse are living while currently stationed for duty
- The state(s) in which you own property.
What to Do When You or a Spouse Is Stationed Overseas
If you or your spouse is stationed overseas it is still possible to file for divorce in the United States. This is generally preferable to a foreign divorce in another country. You will file in the state where you meet the residency requirements. You might also be able to file in the state where your spouse meets the residency requirements.
Why Does the Venue Matter?
Selecting the best state for your divorce is a serious decision. The location can greatly impact the divorce process, property division rules, and support payment agreements. For example, divorce in California comes with a $395 filing fee and minimum processing time of 360 days, while one in Washington, D.C., costs just $80 in filing fees and takes 180 days. A divorce in Texas has typical filing fees around $280 and a 60-day waiting period. The initial costs and length of time before being able to finalize the divorce are also not the only things to consider.
The most important facts to focus on include:
- How the state will divide property and is there property you own that the state has no jurisdiction over (such as a house)
- Whether the state grants alimony easily or not and what are the requirements if there is a need for spousal support
- How much the divorce will cost, and will you and your spouse be able to reach an agreement or are there a number of areas of conflict that will impact being able to reach a settlement
- How long it will take – even if you reach an agreement quickly, there may be waiting periods that are required before you can finalize your agreement and have a divorce decree.
You and your spouse don’t necessarily have to agree on the state in which to file if you’re the one filing the petition, but if you can agree on where to file it will make the process easier.
Establishing residency for divorce may vary depending on the state. Generally, you or your spouse must have lived in the state for anywhere from three to 12 months before filing. Some, but not all, states will permit military members to file for divorce where they are stationed – even if the member does not intend to make that state a permanent residence. Check the local divorce laws and “faux residency” laws where you’re stationed to learn more.
The issue of residency is as complicated as it is important. It is always best to consult an attorney in the state where you want to file for divorce to be sure you meet the local requirements.
If you are considering filing for divorce in Texas, the attorneys at the Law Offices of Mary Ann Beaty, P.C., can help; contact us today to learn more.