Divorce is complicated enough when spouses live in the same state. When one spouse decides that they may want to live in another state, it becomes even more intricate, especially when children are involved.
So how do you get divorced if you live in New Jersey and your spouse has moved out of state with the kids? What if your spouse and children have established residency in the new state—will that impact child custody decisions?
The first issue to address is whether or not you or a Court allowed your spouse to relocate with your children to another State? If you have no children, then your spouse moving to a different state is not problematic per se other than deciding what State rightfully has jurisdiction to process the divorce issues and enter a Divorce decree. But, it does become extremely concerning if she relocated out of State with your child without permission first. And, before you go to the question of whether you can get divorced if you both live in different states, the first item to discuss with your attorney is whether it is appropriate to seek legal recourse to return the children and what State is appropriate to do that in.
As you can see, there are many complicated questions to consider when divorcing between states, especially when children are involved. The court that has jurisdiction will make the important decisions about your divorce, including those related to child custody, if you and your spouse cannot come to agreement between yourselves. In such cases, consulting with a child custody attorney can be invaluable in navigating the legal complexities and ensuring the best interests of your children are represented.
ASCERTAINING WHICH STATE WILL HAVE JURISDICTION
Do you want to get divorced in New Jersey? Under N.J.S.A. 2A:34-10, for the New Jersey court to have jurisdiction, you must have been a resident of the state for at least 12 months (1 year) prior to filing for divorce unless you qualify for an exception to the 1-year residency requirement, which is adultery by your spouse.
However, before your spouse can file in her or his state, she or he must meet the residency requirements set forth in that state, and every state has different requirements! In some it may take just weeks or months to establish residency, while others have specified year residency requirements, like New Jersey. A handful of states only require that the person must live there at the time of filing for divorce and that they intend to stay in the state.
The reason knowing filing requirements in your respective states is important is because there may be a race to the courthouse between you and your spouse, so to speak. There may be advantages to you of filing in one state versus another.
IS THERE A BENEFIT TO FILING IN NEW JERSEY VERSUS MY SPOUSE’S STATE?
Whether it is more advantageous to file in New Jersey or in another state depends on your individual circumstances and the specific divorce-related laws of each state. In some cases, it may be more beneficial to file in New Jersey. But in other situations, filing in your spouse’s state may be more advantageous when it comes to laws regarding fault and no-fault divorce, child custody, child support, and other issues.
There is no one-size-fits-all answer, because every divorcing couple’s situation is unique. If you are a resident of New Jersey and your spouse has moved to another state with the kids and established residency, an experienced family lawyer can help you determine where it may be best to file and what, if any, immediate recourse needs to be done if your spouse moved with your client there without permission.
WHAT IF WE CAN’T AGREE WHERE TO FILE FOR DIVORCE
Agreeing with your spouse on where to file is not necessary. You just need to know what your options are and then take action on whichever option benefits you better before your spouse does. Generally, jurisdiction will be granted to the spouse who files first. If you’ve both filed in separate states literally at the same time, it may depend upon who is served with the divorce petition first. The spouse who serves the petition first would typically have the case heard in their state so long as that spouse truly and legitimately meets the residency requirement.
If your spouse filed without meeting the requirements, then you could file a motion to dismiss in their state and file in the appropriate jurisdiction. The same can be true of your spouse if you do not meet residency requirements in New Jersey.
The above discussion only relates to where to file for divorce; children’s issues can be brought in the state where the children have resided for at least 6 consecutive months. This topic is guided by the UCCJEA laws. It is not unheard of for people to deal with custody or visitation issues in one state and deal with all the other issues and get divorced in another state. Although this is not ideal and often not practical on many levels, there are occasions where it happens.
HOW DOES MY SPOUSE’S MOVING OUT OF STATE WITH THE KIDS AFFECT CHILD CUSTODY DECISIONS?
N.J.S.A. 9:2-2 says that minor children can’t be removed to another state without the other parent’s or the court’s permission. The law applies to children born in New Jersey or who have lived in the state for at least six (6) months. So, if you are facing this situation or truly believe it is about to happen, there is a huge opportunity for you to get the children back to NJ (or prevent them from going in the first place). Sometimes, depending on the facts, custody may be transferred to you immediately. But you must take urgent action. If you wait too long to say or do anything, the court may view that as your agreement to the move, and then things get harder from there from practical and legal standpoints.
If you have agreed to permit your children to move to another state, then the issue is not necessarily one of custody, but rather of having a workable and realistic visitation or parenting time arrangement. So, while most every state puts the best interests of children first when it comes to custody, visitation, and parenting-time decisions, the specific factors that judges consider in making those decisions can differ between states. It is always advisable to work out these issues first before allowing your spouse to physically move as once she has relocated, there is no incentive for her to work amicably with you on a fair schedule.
Depending upon where your spouse moved with the children, you could end up seeing them only limited weekends or over the summer or on school holidays—especially if the distance between you and your children is significant timewise. In this type of situation, you need the help of a skillful family lawyer who will work hard to protect your interests and your relationship with your children.
GET HELP FROM AN EXPERIENCED DIVORCE AND CHILD CUSTODY ATTORNEY IN NEW JERSEY
Divorcing over state lines adds to the legal complexities of the entire divorce process, including child custody and visitation and child support decisions. Our child support lawyer at [MFR] Men’s & Fathers’ Rights Divorce Lawyers in Hackensack are well-versed in effectively representing clients in situations where a spouse has moved out of state with children. We can help you in establishing jurisdiction over your spouse to get the most beneficial outcome in your divorce and child custody proceedings. Call us at (201) 880-9770 to arrange a confidential case evaluation.