When spouses separate after the marriage has fallen apart, it is not unheard of for one of the spouses to move out of state. When this situation occurs and a spouse is ready to officially end the marriage by filing for divorce, they are often unsure where to file the divorce action. Generally speaking, a divorce action is filed in county of the state that the Defendant (non-filing spouse) lives. However, state law may allow for an exception to file where the Plaintiff (filing spouse) lives when the Defendant resides out of state.
The analysis of which state to file can be complex and complicated especially when the spouses have lived in multiple states. In order to hear a divorce action, a court must (1) have subject matter jurisdiction, (2) have personal jurisdiction over the parties, and (3) be the proper venue.
Subject Matter Jurisdiction
First, a court must have subject matter jurisdiction over both parties in order to hear a divorce matter. Subject matter jurisdiction is essentially the court’s authority to hear particular types of cases. For example, in Georgia, only a Superior Court has subject matter jurisdiction to hear divorce cases. Subject matter jurisdiction can never be waived by either spouse.
Second, the court must have personal jurisdiction over both spouses. Personal jurisdiction is the power the court has over the parties in the case. To establish this power over the spouses, the spouses must have minimum contacts with the state in which the court is located. The court has personal jurisdiction over the spouse that resides within that state if that spouse has been a resident of that state for the state’s minimum residency requirement. In Georgia, a party must have lived in Georgia for at least 6 months preceding the divorce filing in order to satisfy the minimum residency requirements.
Whether the court has personal jurisdiction over the non-resident spouse is a more complicated issue.
The court may have personal jurisdiction over the non-resident spouse (1) under the state’s long-arm statute or (2) when the non-resident spouse waives personal jurisdiction.
Reading your state’s long-arm statue will help determine whether your spouse that now lives out of state has the minimum contacts required for the courts in your state to have personal jurisdiction and to hear your divorce matter.
Georgia’s long-arm statute may be found at O.C.G.A. § 9-10-91. Under Georgia’s long-arm statute, the non-resident spouse has minimum contacts with the state in regards to a divorce case if the non-resident spouse “maintains a matrimonial domicile in this state at the time of the commencement of this action or if the defendant resided in this sate preceding the commencement of the action, whether co-habitating during that time or not. This paragraph shall not change the residency requirement for filing an action for divorce[…]” O.C.G.A. § 9-10-91(5).
In a nutshell, under Georgia’s long-arm statute, if you and your spouse live in Georgia and then your spouse re-locates out of state, you may be able to still file your divorce action in Georgia. However, you still must meet the 6-month residency requirement before filing. On the other hand, if your spouse never lived in Georgia and does not maintain a matrimonial residence in Georgia, you will likely have to file your divorce matter in the state that your spouse lives. You should check your state specific long-arm statute for your state’s rules on minimum contact to establish personal jurisdiction over the non-resident spouse.
The court may also exercise personal jurisdiction over the non-resident spouse, if the non-resident spouse simply consents to the court exercising personal jurisdiction over them.
Last, once subject matter jurisdiction and personal jurisdiction have been determined, the divorce action must be filed in the proper venue of the state. Generally, venue is the county where the Defendant lives. If the case is being filed under the long-arm statute or the Defendant waived personal jurisdiction then generally the case will be filed in the county where the Plaintiff lives.
If you have any questions about which state to file your divorce action, you should contact a family law attorney.