Does your divorce cross state lines?
Separation can sometimes occur in stages. A pivotal stage commonly preceding divorce involves the relocation of one or both spouses. Moving to another state can complicate divorce proceedings, affect how courts determine the spouses’ rights to marital property, and impact other decisions in your divorce case.
A number of important details will help you understand your rights in the context of an interstate divorce:
- The current residency of each spouse;
- The type of marriage you are in;
- The location of your children; and
- Where the children typically attend school
Beyond these factors, fluid living circumstances can drastically impact how your interstate divorce plays out. Has one spouse taken the kids to their new state? Has the spouse in the original state refused to let the kids visit the newly relocated spouse? Whether or not these questions apply to you, interstate divorce can create a host of legal issues for spouses otherwise looking for a clean split. That is where the experienced family law attorneys at Bikel & Schanfield can help.
Visitation and custody in interstate divorce
Children can be the most heavily impacted by an interstate divorce, which is one of the reasons the federal government and forty-nine states including New York (and excluding Massachusetts) adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law recognizes that our increasingly mobile society must provide legal clarity in the context of custody disputes across state lines.
The UCCJEA looks to a range of factors to determine jurisdiction, which is exclusive and continuing, for child custody litigation. Typical considerations take the following forms:
- The court will first attempt to determine the child’s “home state,” which is the one in which the child has lived with a parent for six consecutive months before the divorce/custody proceedings begin. The home state will dictate where the custody proceedings will be held.
- In the event the home state is unclear, such as when the child has lived in no one state for a six month period or is younger than six months, courts look to significant connections with others in the state (teachers, pediatricians, non-nuclear family members) as evidence to help them choose a home state.
- The home state of the child may not be the appropriate venue if there is significant risk of abuse or neglect if the child is to return there. This would render jurisdiction appropriate in the child’s current state.
Beyond the question of “home state” and the other determinations under the UCCJEA, family law courts will typically award custody and visitation in a manner commensurate with the child’s best interest. Again, depending on the state in which you find your custody proceedings being held, “best interest” decisions” can take the form of sole physical custody awards or shared custody situations depending entirely on the controlling public policy of the state.
Where the UCCJEA and the adopting states’ laws can be complicated, Bikel & Schanfield can help. Determining your child’s home state, or defending that determination, can be aided by the assistance of experienced attorneys. We command decades of legal experience, and we can capably assist with even the most complicated interstate child custody disputes.
Understand the appropriate jurisdiction for your divorce
A divorce court only has power to preside over your divorce proceedings if it has “jurisdiction,” mentioned above. Jurisdiction brings with it the authority to issue orders in the proceedings before the court—alimony, determination of what is and is not marital property, among other legal issues. If you and your spouse live in separate states, this can create a complicated issue. Sometimes, the mere act of filing first can determine the court that will preside over your proceedings.
Jurisdiction can turn on timing and residency; if your spouse has recently moved to a new state, he or she may still be a resident of New York, and that can make jurisdiction more clear cut. Each spouse will need to be served notice in a manner that is procedurally compliant in the state with jurisdiction, and in some nuanced situations either state can be said to have jurisdiction to enter an enforceable judgment in your divorce suit.
Depending on your situation, you will likely benefit by enlisting the assistance of the competent divorce lawyers at Bikel & Schanfield to help you determine, among other things: (1) the appropriate jurisdiction for your divorce; (2) whether your interstate divorce situation is complicated or relatively simple; (3) the procedural requirements in the jurisdiction you find your divorce in; and (4) the appropriate service of process procedures in that jurisdiction.
Mixed fault, at-fault, and no-fault states
When it comes to the reasons giving rise to the divorce, New York is a mixed fault state, and was the last state to begin offering no-fault divorce in 2010. That means that New York family law courts recognize both no-fault and at-fault divorce. No-fault divorce means that there has simply been an “irretrievable breakdown” between spouses for a period of at least six months. At-fault divorce can involve a range of potential situations giving rise to the divorce, including:
- Cruel or inhuman treatment, often in the form of domestic abuse
- Abandonment for a period of at least one year
- Imprisonment subsequent to the marriage
- Common adultery
At-fault divorce can be rare, and typically involves special and especially complicated or conflictive situations.
If you find yourself in an interstate divorce, know that not all states are mixed fault states like New York. Some states have completely abolished at-fault divorced (and are no-fault only). Your situation may vary depending on the state at issue in your divorce.
Venue shopping is not uncommon
Seeking to divorce in a favorable jurisdiction is a common approach, but courts can show disfavor for such an approach. Be wary when seeking out a favorable state for divorce, as it can backfire if discovered. Alternatively, if you suspect your spouse is doing his or her own venue shopping to find a favorable jurisdiction to control the potential outcome of the proceedings, you may want the assistance of capable family law lawyers who have seen it all. Engaging the attorneys at Bikel & Schanfield can help you navigate the tricky world of interstate divorce.