Does Where You File for Divorce Matter?

Mary Beth Divorce Leave a Comment

There are so many things to think about when making the tough decision to call it quits with your marriage. A telling statement about the emotions and strain that accompany a divorce is that many people who have gotten out of marriages that would be considered bad by anyone’s estimation will still say that it is the hardest thing they have ever done. Studies have shown that clarity of thought is difficult to achieve during times of great emotional distress and that is why it’s imperative that you have top notch council and support from family and friends as you navigate the tricky and stressful waters of divorce law. With those thoughts in mind, let’s address an aspect of divorce that doesn’t always apply to every divorce but is crucial in obtaining a favorable outcome. We’re speaking about divorce jurisdiction.

If your spouse and you have only lived in and established residency in one state since you wed, this may not apply to you but you may still want to be aware of the information. We all have friends or family members who might need our guidance, support and advice at some juncture and you can never have too many tools in the toolbox when it comes to knowledge.

Maybe you got married in Vegas or you live in Washington State but had your ceremony in Portland, OR. Maybe you live in Jersey but had your ceremony in New York City. Live in Maryland or Virginia but held your ceremony in Washington DC? Does that make a difference? One of the primary population segments impacted by geography when divorce rears its head are those serving in the military. A military couple might have residency in one state but be stationed in another and on deployment somewhere else entirely. Perhaps you own property in multiple states? When you file, divorce jurisdiction does make a difference and can greatly impact the outcome.

In late 2011, ABC News put together a very informative piece about the importance of which jurisdiction you choose to file in. It contains some great information to consider. Did you know that some states treat adultery differently? In Georgia, for instance, adultery is a bar to alimony. ABC News interviewed Atlanta attorney Randall M. Kessler who at the time was chairman of the American Bar Association’s Section on Family Law,  a founding partner of Kessler & Solomiany and is an expert on these differing laws. Kessler pointed out that that’s just one of many differences between one state’s divorce law and another’s. Kessler stated that “depending on your circumstances, on what advantage you seek or what penalty you hope to avoid, you’ll be better off divorcing in one state than another.”

How about child support? If you reside in California, child support is typically 10 times what it is, say, in Georgia or Nevada,” says Kessler. Alimony? Apparently it’s very difficult to get alimony in the state of Texas for men or women. When dividing assets, many states will just split them down the middle and each spouse ends up with 50% but in others, judges can choose to favor one spouse over the other. This is also true in the case of child support where gender bias still exists in some places and the mother will usually be favored over the father. While television and the internet may poke fun at those who reference areas of inequality in the area of men’s rights, there are clear examples where bias does exist and it is important for men who are going through divorce and custody hearings to be aware of when and where they might encounter a judge who may be predisposed to summarily dismissing their rights. There are many states where the father is given equal standing and consideration and it is worth your while to know which states do before filing or if you suspect that your spouse might be planning to file.

Divorce is not known for its simplicity and lack of emotional distress. With that in mind, perhaps the biggest component of the process to consider is which states are known for ease in their process. Cost is always a concern as well and fees tend to vary from state to state. Being aware of which states charge which fees could be very helpful. People who are getting divorced tend to want to just have it over with but some states impose waiting periods before or after the actual filing occurs. Being aware of these and how long they last in each state can potentially save you stress and help you to make a better, more informed decision as to where you file.

In 2011, taking these considerations into account, Bloomberg ranked all 50 states as well as the District of Columbia to determine the ease of getting divorced in each and they determined that New Hampshire was the winner based on ease of process while close neighbor Vermont was the most difficult. A telling quote from the article comes from Vermont Law School professor Cathryn Nunlist who stated that when people come to her seeking a divorce, she advises them to cross the state line and do it in New Hampshire, where it’s significantly easier.

So, how easy is it to obtain a divorce in New Hampshire? Believe it or not, it can be done in a single day. There’s no “minimum processing time” or “required residency period”. That’s pretty easy when compared to nearly any state but when comparing to Vermont where a year of residency is required for couples as well as six months of separation during which the couple must live apart, it seems like barely a hassle at all. That’s not even the end of it. After the divorce is granted by a judge, there’s an additional three-month waiting period before it becomes final. All in all, the minimum processing time in Vermont is 450 days and the cost of filing fees is $262.50 versus $180 in New Hampshire. When just comparing fees, South Dakota is the best bargain at $50 while Florida the worst at $409.

The Bloomberg article also notes many other differences across the country. Here is a sampling:

In Delaware, a couple isn’t required to live separately during the state’s mandatory six month separation period but they must have separate bedrooms. Despite that, sexual intercourse is allowed if it’s pursuant to “efforts to achieve reconciliation”.

Grounds for fault divorce (as opposed to no-fault) vary from “habitual intemperance” (Idaho), three years of desertion (Maine), one spouse’s having made an attempt on the life of the other “by poison or any other means showing malice” (Tennessee), and “persistent refusal to have reasonable matrimonial intercourse” (North Dakota).

New Mexico and Mississippi are two of only seven states that, in cases of alienation of affection, give the cuckolded spouse the right to sue the lover of the other spouse for damages.

One spouse’s having been an “idiot” at the time of marriage is grounds for divorce in Mississippi. In Indiana, two years of “incurable insanity” are sufficient.

In 1970 California became the first state to offer no-fault divorce and New York, the final hold-out, began offering them in 2010. No-fault divorces are very popular but in rare situations, for-fault divorces are still an option. Harry Gruener, head of the Family Law Clinic at the University of Pittsburgh School of Law, says you’d be hard-pressed to find a single instance of for-fault divorce in Pennsylvania in the past 20 years. They tend to pop up when the initiating spouse has a point they want to prove such as emotional cruelty or inability to provide acceptably for a family.

So aside from states like New Hampshire that don’t require a certain period of residency, are there really that many people plotting to move to a state that does have a residency requirement but offers conditions favorable and pertinent to some people’s specific situations? “I see it every day,” says Kessler. He cautions, however, that the approach can backfire: Judges look askance on venue-shopping. If the shopper’s intent is discovered, the court may be prejudiced against him or her. Further, the judge may take pity on the deceived spouse, especially where an entire family including young children, has been uprooted to achieve the move.

What should a spouse do if he or she suspects a spouse is planning such a move? “Be suspicious”, counsels Kessler: “If you’re not getting along, and if all of a sudden your (spouse) says let’s move to Nevada–and you have no idea why–start thinking. Get some advice.”

As in all other aspects of divorce, it’s important to realize one’s limitations in understanding the process. People don’t typically plan to get a divorce over a long period of time and in general, are not liable to think of every contingency. This is true regardless of their level of stress or emotion. When your future is on the line, as the old saying goes, you need to “get help from a professional”.

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