Unfortunately, not all marriages last until death do you part. When there are children involved, it makes things much more complicated and often nastier. Sometimes, your spouse decides it would be best to get away, go to a different state, and start all over. This might be fine and dandy except he or she wants to take the kids too. This is going to end up with a legal battle. The question is, where will this battle take place and which state can decide about the children. You need to contact a divorce attorney ASAP and get things started. Here are a few very good reasons why.
State of Residency for the Divorce
Once your spouse moves to a different state, other than Alaska, South Dakota or Washington, he or she must remain there, and be able to prove residency for a specific amount of time before filing for divorce. Since you stayed at home, you can file right away. If you wait, and your spouse can file in the new state, that state will have jurisdiction over the case and anything you want to do pertaining to the divorce will have to be done in that state.
For example, your wife moves from Delaware to Texas. After living in Texas for six months, she files for divorce. Since she has been there long enough to establish legal residency, Texas will claim jurisdiction over the case. If you want to contest the divorce, or anything in it, you will need to have a lawyer that is licensed to practice in Texas. However, if you were to file before she does, or before she had been there for six months, you could use a Delaware attorney and she would have to too.
State of Residency for the Children
According to the Uniform Child Custody Jurisdiction and Enforcement Act, the "home state" of a child is where he or she has lived for the six months previous to any custody or court filings. However, if the child has not been attending school, due to his or her age, your attorney may be able to fight to have the jurisdiction changed if you can show that the child has ties to your state. This could include being involved in extra-curricular activities, such as going to dance lessons or being on a little league team. If you have many relatives in your state that are close to your child, especially cousins or siblings around the same age, it can help your case too.
The best thing for you to do when your spouse takes the children and leaves the state is to file for divorce and custody immediately. Do not wait until he or she can establish residency. In Idaho and Nevada it only takes six weeks to establish residency. Arkansas, Kansas and Wyoming require 60 days and Arizona, Colorado, Illinois, Missouri, Montana and Utah require 90 days to establish residency. All other states require either 6 months or 1 year. As long as you file first you are good no matter what.Share
25 June 2015
My name is Laura, and I am an attorney specializing in helping clients leave violent marriages. The law can help victims be safe, but many potential clients cannot afford legal services and may be afraid to pursue divorce. They may not be aware of services that have been created to keep them hidden from violent ex-partners and to help them be awarded assets in a divorce so they can provide for themselves and their families. I hope to raise awareness of these issues as well as help direct people in danger to facilities where they can receive guidance and financial assistance.