It’s very common for someone who’s getting divorced to think about moving to a different state. Maybe they live far away from their parents, friends and extended family and want to go somewhere with more support. Maybe they’ve gone “home” during a separation and decided to stay. or finally fell free to pursue their dream job elsewhere.
Whatever the reason, you should realize that different states have different laws. That means that depending on which state has jurisdiction over your divorce, your marital property could be split up in very different ways. Also, the state with jurisdiction typically has the power to decide issues like custody and visitation, child support and alimony and, potentially, future disputes if you or your ex seek to modify arrangements. That’s why, if you’re contemplating a move in conjunction with a divorce, you should discuss all relevant considerations with a family law attorney.
For example, if you plan on seeking alimony, you may find that the state where you live may not provide for it at all or may have strict requirements, while the state you want to move to had more generous support laws. You may be able to file there instead, depending on your new state’s residency requirements. Two states – Alaska and Washington – have no residency requirements, while some require that you reside there for as little as 60 days. Others require a full year of residency.
If you plan to file for divorce or avail yourself of the courts in a new state, be aware that you will need to prove your residency by showing a driver’s license, a voter registration card or a residential lease. Also, if your spouse files for divorce first, the state where he/she lives will get jurisdiction over the proceedings.
If you plan to relocate and you have children, keep in mind that custody jurisdiction can be complicated. Typically, the child’s “home state” (the state where the child has been living for at least six months) has jurisdiction over custody matters. But if a different state issued an original custody order, that state could retain the power to decide any modifications if one of the parents still lived there.
Parties can enter agreements as to which state will be considered the “home state” for the purpose of deciding custody issues, but a recent New Jersey case demonstrates that these agreements have limitations, particularly if real-life facts don’t match what’s on paper.
In that case, an unmarried woman who lived in Virginia gave birth to “Jimmy.” When Jimmy was almost a year old, his parents entered a “custody and parenting time” agreement that designated the father, who lived in New Jersey, as the parent of primary residence and gave both parents joint legal custody. The agreement also stated that it was governed by New Jersey law and any related disputes would be decided by New Jersey courts.
Several months later, the mother did not bring Jimmy back to New Jersey after her designated parenting time ended. The father went to a New Jersey court seeking an order that the child be returned. The mother argued that Jimmy was born in Virginia, enrolled in day care there and resided there, making Virginia his home state for custody purposes. She also claimed the father’s legal paternity was never established. The court still found that New Jersey had jurisdiction over the agreement and ordered Jimmy’s return.
But the New Jersey Appellate Division disagreed, saying the lower court wrongly relied on the agreement between the parents as a basis for jurisdiction. Instead, the court should have determined which state Jimmy was most personally connected with. The trial court will now have to decide what state is Jimmy’s “home state.”