Every divorce is different, with its own set of circumstances and personalities. Matrimonial law is also complicated, with many gray areas, and it can differ significantly between states and even jurisdictions. In the case of a divorce or separation across state lines, particularly if child custody is involved, understanding these differences can be crucial.
Even before delving into the legal complexities of divorce between parties who live (or plan to live) in different states, the financial, emotional and psychological costs are important considerations. They can be exacerbated by distance and competing jurisdictions, especially in protracted courtroom battles.
There are a variety of logistical and emotional issues the legal system cannot address, and attorneys should encourage and empower the families they represent to communicate effectively and make informed decisions about their future. Whenever possible, settlement is always the best option.
Divorce is generally subject to state law, not federal, and states treat cases differently. Whether it involves contentious litigation or not, the state in which a divorce takes place can have significant implications on every aspect of it. In some cases, litigants can choose which state will have jurisdiction, and it’s imperative that they consult an attorney versed in the laws of that state before they make any decisions. They should review all this before relocating, or they risk the divorce being tried in an unfavorable jurisdiction.
In some states, for example, divorce papers can’t be served on a Sunday. If they are, they may be dismissed, and the case must be submitted to the court a second time. Some states also require process servers to be licensed—sometimes only in specific jurisdictions, such as New York City. In Wyoming, only a sheriff can serve them.
Residents of Delaware usually must be separated for at least six months before filing for divorce, and parents must attend a “parent education class” before the split is finalized, meaning that neither party can move out of state for a while. In Oklahoma, neither party can remarry for six months after the divorce (with some exceptions) unless it’s to someone from another state, but even then, they can’t cohabit in Oklahoma. In Arkansas, divorce in a “covenant marriage” may be granted only after the parties have undergone marital counseling—another potential problem if one has moved or wants to move out of state.
Trust and estate issues loom large, too. There are nine “community property” states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), in which the property of a married couple is considered either jointly owned or the separate property of one spouse. Generally, all assets and earnings acquired during the marriage by either spouse are considered communal. They must be divided equally regardless of how much each person contributed. This applies to debts, too. Property acquired before the marriage or after the separation or divorce is separate, and the acquiring spouse keeps it in full. Importantly, gifts or inheritances received by either spouse, at any time and of any kind, are considered separate property.
In “equitable distribution” states, by contrast, the court divides property acquired during the marriage objectively, which might not mean equally. Considerations may include each spouse’s relative contribution to the property, or a spouse’s health. Here, too, property acquired before or after the marriage, as well as gifts and bequests, are considered separate (although appreciation of property value may be considered “marital”).
These laws are complicated enough on their own and can become a legal quagmire when spouses and/or property are in different states with conflicting laws. (Not to mention a probate process if one spouse dies.) Therefore, it’s highly advisable to preempt these issues with a prenuptial, postnuptial or other written agreement that details asset ownership and distribution, which will usually supersede the default state laws.
Moreover, if the parties are near settlement and one state’s law is favorable to one litigant, it’s imperative that their attorney include, in any stipulation of settlement, that the enforcement and/or modification of the agreement will be in accordance with that state’s law. Even if future proceedings are held in another state’s court, it will recognize the provision.
Establishing which court has jurisdiction can be the most important aspect of a divorce proceeding. The court has the authority to issue orders affecting all aspects of the matrimonial action, such as permanent and pendente lite (pending suit) maintenance, child support, exclusive use and occupancy of a home or business and valuation of licenses and businesses, among much else. The outcome of disputes may be predetermined by which state has jurisdiction.
Interstate child custody and support is often the most challenging dispute. Though the laws are relatively simple, the emotional and logistical issues are more complicated. If a child is involved, settling a divorce instead of litigating it becomes even more prudent. Litigating parents are effectively divested of say or input concerning their own children, with decisions affecting all aspects of their lives made for them by a robed stranger.
The determination of the child’s home state is made by the court, pursuant to federal law (the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA, adopted nationwide except in Massachusetts and Puerto Rico). This also dictates where the custody proceedings are held. Barring fears of abuse, neglect or other danger to the child, the venue is typically in the state in which the child has lived for at least six consecutive months before the divorce or custody proceeding began.
Visitation schedules and other parental rights and responsibilities across state lines are especially challenging and often unfairly taxing on the child. COVID-19 has made this worse, but it seems that most states’ courts have ruled that the pandemic should not be invoked to restrict parents’ time with their children. Similarly, the pandemic does not generally justify modifications to existing court orders.
That said, though, with so many aspects of life affected by COVID-19—health, employment, finances, travel and more—custody, parenting time and support often can’t help but be drawn in as well. Given that it appears the coronavirus and its variants will be with us for a while, possibly becoming endemic, court rules and their exceptions are likely to vary in the immediate future.
In sum, states’ divorce laws are numerous and complicated as well as constantly changing. The bottom line: Always consult a knowledgeable attorney before taking any action.
Joseph Trotti is the head partner of Vishnick McGovern Milizio LLP’s Matrimonial and Family Law Practice and founder of the VMM Family InstituteSM. He leads VMM’s Litigation Department and is a key member of the firm’s Surrogacy, Adoption and Assisted Reproduction and LGBTQ Representation practices. He can be reached at jtrotti@vmmlegal.com and 516.437.4385.
