Determining Where to Initiate Divorce Proceedings

Blog | 6.22.2016

After making the difficult, life-changing decision to seek a divorce, many questions will arise. Some families will not only have to decide when they are ready to move forward, but where they should or can proceed with the dissolution process. Family law differs from state to state in both statute and judicial attitude, so parties should seek legal advice if they suspect there may be a jurisdictional question. In order to have access to a state’s court system for the purposes of obtaining a divorce, the court must have jurisdiction over the parties and the matter. In order for the court to have jurisdiction over the subject matter of the divorce, one of the parties must be domiciled in the state for ninety-one days prior to commencing the divorce action.

For most, this threshold requirement is easily satisfied. For some, however, domicile in the forum state is not so easily proven. Domicile is generally residence in fact with the intention to remain indefinitely. Domicile is also called legal residence, and is considered by courts to be the place that a person calls “home.” A person may only have one domicile. Often, a person’s domicile is obvious. But what happens when a family spends significant portions of time in multiple states? Or when one spouse commutes for employment purposes? Some families own vacation homes in other states, and may take advantage of various legal and financial benefits offered by other states (lower state income and property taxes, for instance).

If the responding party raises a jurisdictional challenge alleging that neither party is domiciled in the forum state, the petitioning party must show that one of the parties has been domiciled in that state for at least ninety-one days prior to filing. Because physical residence is very easily proven, such challenges most likely involve whether one party considers the residence in the forum state their “home.” No particular fact is dispositive of a person’s intent to remain, but a court will look to a person’s actions to determine where that person considers their home. Such circumstances as vehicle registration, driver’s license, voting registration and voting practices, place of employment, location of bank accounts, if there is more than one residence, which residence is more substantial and the order of purchase, maintenance of health insurance and location of health care providers, and where the parties file their taxes may aid the court in determining where the parties are domiciled. Knowledge of these facts is especially important, because if the court finds that neither party has been domiciled in the forum state for ninety-one days prior to filing, the court must dismiss the state.

By: Justin Summers