Charlottesville Divorce Lawyer Rob Hagy

JURISDICTION IN DIVORCE: WHY IT MATTERS

Jurisdiction in divorce: Why it matters

There are countless issues that can impact your post-divorce life. One issue that a lot of people don’t think about, but which can have an especially significant impact, is which state has the power to oversee your divorce.

This is because different states can take very different approaches to how they value and divide up marital property, how they determine whether one of the spouses should pay alimony and how much, how they interpret and enforce prenuptial and postnuptial agreements, and how they determine custody and visitation issues.

For example, some states are “community property” states, where any property acquired during marriage, except for gifts and inheritances, is considered to be owned jointly by both partners, while any property brought into the marriage is separate property of the individual spouse. Upon divorce, all marital property is divided up equally while each spouse keeps their separate property.

Meanwhile, other states follow “equitable distribution” rules, which means any property acquired during marriage is divided up equitably — in other words, fairly under the circumstances — but not necessary equally. One spouse can be ordered to give up some of their separate property to make things fair to the other spouse.

As for custody, different states may emphasize different factors in determining what’s in a child’s best interest, and regarding alimony, states may have different ways of calculating obligations and determining when the obligation to pay terminates.

Whatever the issue, determining proper jurisdiction can be complicated and may not always go the way you anticipated.

Take, for example, a recent case in Tennessee. A couple got married there in 2014 but soon moved to Missouri, where they had two kids together. Four years later, the husband lost his job and they moved back to Tennessee to live with the wife’s parents. The marriage was shaky, however, and that same year the wife filed for divorce in the county where they married, claiming “irreconcilable differences.”

The husband then challenged Tennessee jurisdiction. He argued that Missouri should have jurisdiction because they had not lived in Tennessee long enough to establish residency and because the acts the wife cited as demonstrating irreconcilable differences occurred in Missouri. He also argued that it was inappropriate for a Tennessee court to consider custody issues because it was not the children’s home state.

A family court judge ruled that Tennessee had jurisdiction, finding that with respect to the divorce judgment, the wife was a Tennessee resident when the divorce broke down, even if the husband wasn’t. As for custody, the judge ruled that Missouri didn’t qualify as the children’s home state since the husband had sold their house in Missouri and the children no longer had a home there. That meant Tennessee could have jurisdiction because it provided a more appropriate forum to resolve disputes.

The Tennessee Court of Appeals upheld the decision, emphasizing that jurisdiction made sense because at least one parent was living there when the divorce began.

Another case, from South Carolina, shows that if you want to be considered a resident of a state for jurisdiction purposes, you need to take steps to establish legitimate residence. There, a husband who filed for divorce expected his parents’ South Carolina home to serve as his residence. Prior to the divorce, the husband, a pilot, returned to the marital residence in North Carolina whenever his military service and airline employment permitted, and he was involved in local North Carolina politics and did not cancel his voter registration there until a few weeks before filing for divorce.

He filed for divorce in South Carolina on grounds of adultery. Jurisdiction may, in fact, have been particularly important to him because South Carolina prevents unfaithful spouses from receiving alimony. But a family court dismissed his case, finding that he couldn’t show he was a South Carolina resident for a year before filing and rejecting his argument that his military service and work kept him away from the state. The judge also ordered that he pay the attorney fees his wife incurred challenging the filing. The South Carolina Court of Appeals upheld the decision.

Mother Who Relocated Loses Custody.

Mother's relocation inside the Commonwealth causes change in custody.  In the case of Turpin v. McGowan, the Virginia Court of Appeals, in an unpublished opinion, held that a trial court properly changed custody of child from mother to father where mother moved with the child from Stafford County to Sterling, Virginia and then again to Vienna, Virginia without a court order or without consulting father.

-Rob Hagy, Charlottesville Custody Lawyer.  I have represented fathers and mothers in relocation cases.  If I can help you with this issue, please call me at (434)293-4562.

Mother Could Keep Primary Physical Custody in Move from Roanoke to Bluefield

In the case of Seamans v. McClure, the Roanoke Circuit Court held that a mother could keep primary custody of 9 year old child in 100 mile move from Roanoke to Bluefield where child has strong bond with dad, mom's financial situation will improve and father's interests were more self serving.  Court specifically held this was not a relocation case.

Mother Could Relocate Children from Virginia to Wisconsin

In the case of Judd v. Judd, the Virginia Court of Appeals, in a published opinion, ruled that a mother could relocate with her two children to Wisconsin.  The move did not substantially impair the non-custodial parent's relationship with the children where the father exhibited little to
no interest in spending time with his sons until he learned wife was keeping a detailed log of his
behavior toward the children and was planning to file for divorce.  The other kinds of things that father did with the children could be arranged in expanded visits that would take place on a less frequent basis.  The children were 4 and 6 years old.  The move was necessitated by a possible job loss by mother and would actually result in mom spending more time with the kids.  The cost of living in Wisconsin was significantly lower than in Virginia and that mother would more easily be able to earn enough money to support herself and the children there than in Virginia.  The evidence supported a finding that wife's extended family, including her parents, three brothers, one sister,  and their families, all resided in Wisconsin.  The trial court also found that the children were of an age and stage in life where they had not developed ties to friends and places in Virginia such that a move would be difficult for them.  Wisconsin was a familiar place with familiar people.

Mother Permitted to Relocate from Virginia to Pennsylvania

In the case of Masters v. Sutton, the Virginia Court of Appeals, in an unpublished opinion, ruled that the trial court did not err in granting a motion for modification of child custody and visitation filed by mother. Mother filed her motion after remarrying and accepting a job in Pennsylvania.  Father counter-filed seeking a change in custody.  The child was nine years old.  The trial court found that, although both parties had loving and strong relationships with the child, mother had been the child’s primary caretaker throughout the child’s nine-year life and she was better able to assess the needs of the child. In addition, the court found that father had mental health issues, employment issues, and an upcoming possible change in residence that prevented him from providing the child with stability and structure. Furthermore, mother’s relocation was not motivated by a desire to reduce father’s time with the child. Moreover, mother was relocating to an area that was less than three hours’ drive from father’s residence.

PKPA Prevents Virginia From Exercising Jurisdiction Over Custody Dispute Between Gay Couple

In the case of Miller-Jenkins v. Miller-Jenkins, the Virginia Court of Appeals ruled that the trial court improperly adjudicated the parental rights of a lesbian couple who were joined in a Vermont civil union . The parties separated.  One party stayed in Vermont.  The other moved to Virginia with the parties' daughter.  A Vermont court issued an order concerning the parties' parental rights concerning the child.  After that order was entered, the Virginia trial court entered another order covering the same matters.  The trial court should not have entered the second order because, the Court of Appeals ruled, the Parental Kidnapping Prevention Act, 28 U.S.C. Section 1738A, prevented the trial court from exercising jurisdiction in the first place.  The Vermont, and not the Virginia orders, are entitled to full faith and credit.

May Who Was Not Even Stepfather of Child Could Petition for Visitation With Child From Previous Marriage; Relocation to Florida Approved.

In the published opinion of Surles v. Mayer, the Virginia Court of Appeals ruled that a man who lived with and had a daughter with a woman could petition the court for visitation with the woman's son from a previous marriage.  However, the Virginia Court of Appeals denied the request for visitation as the man failed to show that the boy would suffer actual harm if the man was not allowed visitation with the boy.  Significantly, the mother objected to allowing any visitation between the boy and the man.  In addition, the Court ruled that the trial court properly permitted the woman to take the parties' daughter and move to Florida.