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Divorce is complicated enough when spouses live in the same state. When one spouse lives in another state, it becomes even more so; and when children are involved, the complexities can increase exponentially. 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?
There are many complicated questions to consider when divorcing between states, especially when children are involved. However, you can’t even begin the divorce process until it’s determined which state will have jurisdiction over the proceedings. The court that has jurisdiction will make the important decisions about your divorce, including when it comes to child custody, if you and your spouse cannot come to agreement between yourselves.
How to Ascertain 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 file before the 1 year residency requirement. That said, 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 in others, such as in New Jersey as already mentioned, a person must be resident for a year. 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 that this is important is because there may be a race to the courthouse, so to speak in these situations between you and your spouse. You will want to speak with an attorney immediately if you or your spouse both qualify in your respective states to determine the next best step for you and which state would be more beneficial for you to start this process considering the varying laws on custody, child support, alimony, and division of assets, as well as the convenience factor.
Is There a Benefit to Filing in New Jersey Versus My Spouse’s State?
Besides what may be an obvious benefit to you of not having to travel to another state for divorce and child custody hearings, there may be other advantages. 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 your spouse’s state, again depending on your unique situations and the laws of that state when it comes to fault and no-fault divorce, property division, spousal support, child custody and child support. 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 established residency in another state, an experienced family lawyer can help you determine where it may be best to file.
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 or are not 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 that spouse filed without meeting the requirements, then you could file a Motion to Dismiss in that State and file in the appropriate jurisdiction (not necessarily in that order, depending). The same can be true of your spouse. If you filed in New Jersey, but the case should be heard in a different state (and you refuse to withdraw your filing), then the other party can file a Motion to Dismiss in New Jersey Court to get your filing kicked out and moved to the other State.
Of course, if your spouse has not yet lived in their new state long enough to establish residency, then you will likely file in New Jersey so long as you have lived here too for at least a year.
The above is just relating on where to file a divorce; children issues can be brought in the state where the children have resided for at least 6 consecutive months. That is a different conversation, and 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 and it is not a big deal depending on the two states involved.
How Does My Spouse’s Moving Out of State Affect Child Custody Decisions?
The answer to this depends on whether the children went with your spouse or the children remained in New Jersey. Remember, the other parent cannot permanently remove the children out of state (i.e. move with the children) without either your consent or a Court Order. If this has happened or is about to happen, the other spouse or parent may be in violation of New Jersey law and perhaps in violation of some criminal laws too depending on the situation.
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) and sometimes, depending on the facts, custody may be transferred to you immediately. That is, if you take urgent action. We say this because the longer you go and wait without saying or doing anything, the court may view that as you agreeing to the move and then things get harder from there from a practical and legal standpoint. But that doesn’t mean you shouldn’t do something about it and especially if the children were moved out of state over your objection!
So, time is of the essence in these situations! Our Hackensack attorney can help you understand what recourse you have if your spouse moved out of state with the children without your permission.
If you have agreed to permit your children to move to another state, then the issue is not necessarily one of custody, but rather a workable and realistic visitation or parenting time arrangement. That is, unless you are also willing to move closer to where your children are current living. 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. You would need to contact an experienced family law attorney in the state where your children are living to understand the laws of that state and what your options are.
Of course, 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 time-wise. 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. At MR. Men’s Rights Divorce & Family Law of New Jersey by Schultz & Associates, LLC, we understand the frustration and emotional anxiety fathers and mothers experience in child custody decisions. We will fight for you.
This educational video was brought to you by Carrie Schultz, an experienced New Jersey Divorce Attorney.
Get Help from an Experienced Divorce and Child Custody Attorney in New Jersey
Are you looking to get divorced, but your spouse and kids are in another state? Divorcing between state lines adds to the legal complexities of the entire divorce process, including child custody and visitation and child support decisions. Our experienced divorce attorney at MR. Men’s Rights Divorce & Family Law of New Jersey by Schultz & Associates, LLC is 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. To find out more about how we can help you, call us today at (201) 880-9770.
Carrie S. Schultz, Esq. – author
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