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I live in one state and my spouse lives in another. Where do I file for divorce?

OHIO FAMILY LAWYER Virginia Cornwell is an Family Lawyer in Central Ohio.  She is an Ohio State Bar Association Certified Family Relations Specialist.  

Where you must file for divorce depends on jurisdiction.  To make it more complicated, it depends on more than one kind of jurisdiction.

COLUMBUS FAMILY LAWYERIf children are involved, the first consideration is subject matter jurisdiction.  Subject matter jurisdiction means the court is authorized to hear a certain kind of claim, in this case, custody matters.  Under the UCCJEA, which is adopted in Ohio and most states, a court make initial custody decisions unless, generally, 1) the child has been living in that state for the last six months (the child’s home state), or, if the child has no home state, the state where the child has the most significant connection.  Custody modifications have different rules.  To learn more about the UCCJEA, click any of these links: http://www.cornwell-law.com/01/columbus-ohio-child-custody-part-4/ http://www.cornwell-law.com/06/interstate-family-law-jurisdiction-attorney-series-part-i/.

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A court either has subject matter jurisdiction or it does not.  It is not something the parties can give the court by agreement.  If an Ohio court makes orders that it did not have subject matter jurisdiction to make, those orders can be challenged, and voided, at any time.  So step number one, if there are kids involved, figure out which state has subject matter jurisdiction.

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HOWThe second type of jurisdiction involved in divorce is personal jurisdiction.  This is what a court needs to make order over the parents, the parents’ property, and the parents’ money.  This can be kind of tricky.  Personal jurisdiction is usually where each parent lives.  Sometimes, if parents have connections to more than one state, then a court can have “long arm” personal jurisdiction.  However, your children living in a state is not enough to give a court personal jurisdiction over you.  Generally, what is enough is you living in a state, you having property there, you being served with papers in a state, you (or your lawyer) filing a general entry or notice of appearance, you (or your lawyer) making an appearance in a court proceeding without stating that you are making an appearance for the purpose of  challenging jurisdiction, or doing something to invoke the jurisdiction of the court which you assert has no jurisdiction over you.

So at this point, take a look at which state (or states) have personal jurisdiction over the parents (and their property and money).  If there is a state that has personal jurisdiction over at least one of the parents, AND subject matter jurisdiction over the children, then that is probably the best state to file in.  But there’s a hitch.  There’s always a hitch.

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WHERE In Ohio divorce cases, according to Ohio Revised Code 3105.03, the PLAINTIFF (the person who files the divorce), has to have been a resident of the state (lived in the state) for six months before filing a complaint for divorce.  So what if you do not live in Ohio, your spouse and children do, and your spouse will not file for divorce?  You may have to file for divorce in the state where you live.  Unless that court has “long arm” jurisdiction over your spouse, the court will only be able to end the marriage.  It will not be able to make orders regarding your spouse’s property or money, and will not be able to make orders regarding the children.  Once your marriage is ended in the other state, you can file an action in juvenile court in Ohio to secure orders regarding your children.

Sound complicated?   If you would like to talk to one of our Columbus Ohio Family Lawyers, please give our office a call at 614-225-9316 to schedule a telephone or office consultation.

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How to register an out of state custody order in Ohio.

Ohio Family Law Attorney Out of State Custody Register ChangeIf you have a custody or visitation order from another state, and you now live in Ohio, the process for registering your order with the courts in the state of Ohio is actually relatively simple.  Unfortunately, jurisdictions is an issue that can be complicated and sometimes difficult to understand.  However, if the state that made the order had jurisdiction to make the order, then registering it in Ohio is pretty basic. Here is a link to a packet of  forms which is a pretty good resource for registering a foreign decree in Ohio.  You can white out or cross out the name of the county and change it to your county’s name.  The filing fee might be different in your county as well, so you need to check that by either viewing your county’s website, or calling the clerk of court in your county.

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Interstate Child Custody Attorney OhioRegistering your decree means that you have the right to have an Ohio police officer enforce your decree just as they would if it were made by a court in Ohio.  It does not mean that jurisdiction has moved to Ohio and that Ohio courts can CHANGE the order.  Ohio courts can only enforce the order.  The other parent can contest registration of the order, but only on a very limited basis.

Before you file your paperwork to register your order in Ohio, you should review the law to make sure you have dotted all your i’s and crossed your t’s.   To see the laws about child custody in Ohio and which state has jurisdiction, see Ohio Revised Code 3127.

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Ohio Interstate Divorce Attorney series on Divorce part 15: Interstate Divorce and Child Custody

This is the 15th installment in a series by a Ohio Interstate Divorce and Custody Attorney about the process and options for ending your marriage in Ohio, and about Ohio divorce laws. This article discusses interstate child custody jurisdiction.  Interstate child support and enforcement will be discussed in another article. You can view other articles in the Divorce in Ohio series by clicking any of the links at the end of the article.

 

OHIO CHILD CUSTODY JURISDICTION AND DIVORCE:

What you need to know about The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and Subject Matter Jurisdiction

In the previous article we discussed personal jurisdiction, and how you need it if you want someone to pay money.  Subject matter jurisdiction is different.  It can never be waived.  It is one of the ONLY issues that can be raised on appeal for the first time.  Why is it so important to divorce and custody cases?  Because one state, and one state only, has subject matter jurisdiction to make child custody orders under the UCCJEA.  Either a state has it, or it does not, and clever little tricks like trying to file court papers first or serve someone while they are in a state will NOT give a state subject matter jurisdiction.  It is one of the few areas in Ohio Family Law where the Trial Court does NOT have broad discretion, and the law is clear.  The Court of Appeals will actually get involved to stop a trial court from exercising subject matter jurisdiction improperly.

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Why is child custody so different?  Because there is a federal law about child custody.  For the most part, the federal government leaves custody issues to the state, and only steps in on matters which effect the nation as a whole.  There is a federal law called the Parental Kidnapping Prevention Act that was designed to keep parents from taking the children from their home, moving to another state that they would like to live in and filing court papers in the new state to obtain jurisdiction.  The Parental Kidnapping Prevention Act (PKPA) gives clear instructions regarding which state has jurisdiction over child custody matters.

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The PKPA says that ONLY courts with proper jurisdiction under the PKPA can make orders regarding custody that have to be obeyed outside of that state.  In legalese, only states that have jurisdiction under the PKPA can make custody orders which are entitled to “full faith and credit” in all other states.

Ohio, like most states in the U.S., has adopted the UCCJEA.  The UCCJEA is a treatise, or a scholarly writing, that has been made part of the law in the states that have adopted it.  To understand the UCCJEA in Ohio, you must look at the statutes in the Ohio Revised Code that made the UCCJEA the law in Ohio.  The UCCJEA was adopted in Ohio to bring Ohio custody law in compliance with the PKPA.  In a nutshell, both the UCCJEA and the PKPA require:

  • 1) generally, initial custody determinations must be made in the State where the Child has lived for the 6 months immediately before the filing of the court paperwork (home state jurisdiction);
  • 2) once a custody order is made by a state with proper jurisdiction under the UCCJEA, then that state has continuing exclusive jurisdiction (that state keeps jurisdiction unless both parents and all the Children leave that state); and
  • 3) any state can exercise emergency jurisdiction, but that emergency jurisdiction only lasts as long as the emergency, and then the State with continuing exclusive jurisdiction (if a custody order already exists from that state) or home state jurisdiction (if no custody order is made yet in the home state) will assume jurisdiction.  Emergency jurisdiction is temporary, and dragging out the court proceedings over the alleged emergency for six months or more won’t change anything.

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Now, if you really think about it, both the PKPA and the UCCJEA were made because of all the things people used to do to try to give a state jurisdiction that it shouldn’t have.  These laws both contemplate and defeat “custody grab” scenarios such as:

  • leaving one state and filing court papers shortly after arriving in a new state (haven’t lived in the new state six months)
  • filing “emergency jurisdiction” motions and then hoping that keeping the case in court six months will keep jurisdiction in the wrong state (if a custody or divorce/custody or similar case has been filed the Child’s home state, the case WILL end up back in that home state.
  • trying to lure the other parent into the new state to serve them with paperwork (can’t get subject matter jurisdiction this way)
  • filing papers in the wrong state in the hopes the other parent cannot afford the airfare to appear (Ohio law can require the parent filing in Ohio to pay travel expenses for the other parent to come fight it)
  • Hiding the Child for six months or kidnapping the Child
  • filing a case citing the “general jurisdiction” of the Juvenile Court over a child “who is not a ward of another court of this state”.  Read the statute closely – that statute presumes that Ohio already has subject matter jurisdiction over custody under the UCCJEA.  In addition, Ohio Revised Code 3127.15(B) clearly and unequivocally states: Division (A) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

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To learn more, see our other articles on the UCCJEA.  You may also be interested in some of our other divorce articles:

DISCLAIMER – Read it, it’s stuff you need to know!

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Franklin County Ohio Divorce Attorney series on Divorce part 14: Interstate Divorce

This is the 14th installment in a series by a Franklin County Ohio Family Law Attorney about the process and options for ending your marriage in Ohio, and about Ohio divorce laws.

OHIO INTERSTATE DIVORCE

This article discusses Interstate Divorce between two parties who do NOT have children.  Interstate child custody jurisdiction and interstate child support jurisdiction will be talked about in other installments in the series.

Suppose two parties live in different states, and one or both of them, has decided that the marriage should end.  So where do they file?  Part 11 of this series, Part 11: Columbus Ohio Divorce Jurisdiction, talked about Ohio’s jurisdiction to end the marriage ONLY.  What about when when a husband or wife wants Ohio to enter orders about the other spouse’s money or property?  For a court to order someone to pay money, or make orders about dividing his or her property with their spouse, the court must have personal jurisdiction.  Here’s the catch: a state that has in rem jurisdiction over the marriage because one of the parties lives in the state can end the marriage, but a court cannot order somebody to pay money unless the court has personal jurisdiction over the person who will be paying money.

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Personal jurisdiction for divorce purposes is about how much contact a person has with a state, in this case, Ohio.

To make things less confusing, I’ll use “spouse 1″ and “spouse 2″These things are NOT enough to give Ohio personal jurisdiction over  spouse 2 in a divorce case with no children:

  • Spouse 2 owns property in Ohio, but has no other contact with Ohio.
  • Spouse 1 lives in Ohio.  Spouse 2 has visited Ohio, but has never established a residence or business here and was not served with court papers while here.
  • Spouse 1 has put some bills into Spouse 2’s name and had them mailed to Ohio, but Spouse 2 does not live in Ohio.
  • Spouse 1 and Spouse 2 got married in Ohio, but Spouse 2 has not lived in Ohio during the last six months.
  • Spouse 1 and Spouse 2 had a long distance relationship and a long distance marriage.  They got married in Ohio but Spouse 2 has never lived in Ohio, only visited.

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These situations ARE enough to give Ohio personal jurisdiction over spouse 2 (to order money payments such as alimony), and in rem jurisdiction to end the marriage:

  • Spouse 2 has lived in Ohio for the last six months
  • Spouse 1 and Spouse 2 had a long distance relationship and a long distance marriage.  Spouse 2 lived in Ohio during the last six months.  The parties got married in Maryland.
  • Spouse 1 lives in Ohio and Spouse 2 lives in West Virginia.  Spouse 2 went to Ohio to deliver some belongings to Spouse 1, and while Spouse 2 was in Ohio, Spouse 2 was served with a summons and complaint by a process server or sheriff.
  • Spouse 1 files a divorce in Ohio.  Spouse 2 lives in North Carolina, has never lived in Ohio, but is properly served in North Carolina with Spouse 1’s Summons and Complaint for Divorce.  Spouse 2 ignores the documents because Ohio does not have personal jurisdiction.  Therefore, the legal defense of lack of personal jurisdiction is not raised, and is forever waived.
  • Spouse 1 files a divorce in Ohio.  Spouse 2 lives in Florida, has never lived in Ohio, but is properly served in Florida with Spouse 1’s Summons and Complaint for Divorce.  Spouse 2 hires an Ohio attorney to raise the defense of lack of personal jurisdiction.  Unfortunately, that attorney files a general Notice of Appearance, which does not raise the personal jurisdiction challenge.  Personal Jurisdiction is waived and the divorce proceeds in Ohio.

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In summary, if you are going to want the court to order Spouse 2 to pay money, you must file in the state that has personal jurisdiction over Spouse 2.  Even if Spouse 2 makes a mistake and files the wrong paper, plan to spend some time and money in court arguing over whether they had their shot and they blew it.  Rather than go that route, it’s best to file in the state that has the proper jurisdiction in the first place.

You may also find some of these articles in our divorce series to be of interest:

In addition to the other installments in the Divorce in Ohio Series (see links at top of the page), you may also find the following topics, which relate to divorce, to be helpful.

DISCLAIMER – Read it, it’s stuff you need to know!


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Columbus Ohio Divorce Lawyer on Divorce in Ohio Part 11: Jurisdiction

 

This is the 11th installment in a series by Virginia Cornwell, a Columbus Ohio Divorce Attorney and Ohio State Bar Association Certified Family Relations Specialist.  Virginia is one of approximate 100 attorneys in Ohio to have received this honor.  This article is about the process and options for ending your marriage in Ohio, and about Ohio divorce laws.

OHIO DIVORCE JURISDICTION

Jurisdiction is a complicated issue.  Actually, it’s a whole bunch of issues all jumbled together.  There is personal jurisdiction, subject matter jurisdiction, and then there is in rem jurisdiction.  If that weren’t complicated enough, there’s also a similar issued called venue.   Before you determine Venue, you have to figure out the proper jurisdiction.

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There are many things that are relevant to where you should file your divorce, such as:

  • Whether one or both spouses live in Ohio, and how long they have lived there?
  • Which Ohio County each spouse lives in, and how long have they lived there?
  • If one or both spouses are are absent from Ohio but still have contacts with Ohio, what is the nature and extent of your contacts?
  • Whether either husband or wife is in the military
  • Whether you have children
  • Whether you want the court to make orders regarding support, real property or personal property, or just to grant a divorce?
  • Do you want a divorce, dissolution, annulment or legal separation?

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IN REM JURISDICTION FOR OHIO DIVORCE

In Rem is a latin term.  When used in the divorce context, it refers to the court’s jurisdiction over the marital status.  So a court may have in rem jurisdiction to grant a divorce, but no personal jurisdiction over one of the parties, their money and their property, and/or no subject matter jurisdiction over the parties’ children.  In that case, the court could ONLY make orders that the parties are divorced.  Everything else (child support, spousal support, custody, property division, etc.) would remain in as it is, with no orders until somebody files something to get those orders in the proper jurisdiction.

Why would you want to file a divorce in a court that can only end the marriage and not make any orders regarding child support, custody and property?  Actually, there are lots of reasons.

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  1. The first and most obvious would be that a person wants a divorce and does not know where their spouse is.  If you have LOOKED for your spouse (yes, that means contacting the inlaws if you have their phone number or e-mail), tried several methods to find them and been unsuccessful, you can serve your spouse with divorce papers by publication in the newspaper.  You will have to file an affidavit with the court telling them all the methods you used to try to locate your spouse, and what the results were.  Once publication is completed, this is “good service” but ONLY for ending the marriage.

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  1. Another reason would be that you and your spouse don’t have any money, property or children to divide, so ending the marriage is the only thing you care about.
  2. A third reason would be that even though you DO have money, property or children with your spouse, you have tried your best to serve your spouse through other methods (mail, sheriff, process server), and you have not been able to do so.  If you are not sure that you have your spouse’s correct address, you MAY be able to serve your spouse by publication and go forward with the divorce.

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You may also find some of these articles in our divorce series to be of interest:

In addition to the other installments in this Divorce in Ohio Series (see links at top of the page), you may also find the following topics, which relate to divorce, to be helpful.

AdulteryAnnulmentAlimony (Spousal Support)Best Interest of the ChildChild CustodyChild Custody Jurisdiction, Child Support (deviation)Child Support (how much)Child Support (how to pay)Child Support (lower)Child Support (myths)Child Support (resources), Child Support (sign up),ContemptDissolutionDivorce BasicsDivorce MythsForeclosure MediationGrandparentsGuardian ad LitemHouse, How Long Your Divorce May LastInternational Abduction,Legal SeparationMediationMovingPacket of Forms vs. Getting a LawyerPrenuptial Agreements (Antenuptial Agreements)Shared Parenting,Temporary OrdersTemporary Orders AffidavitsWhere to File for Divorce

DISCLAIMER – Read it, it’s stuff you need to know!