Every state (and every country) has standards for jurisdiction that decide whether or not you can bring a divorce case to their courts.

Where you can file for divorce is an important question because the laws of the state or county where you will file will control how your divorce case is resolved, and those laws can differ significantly. A British woman was recently denied access to file divorce in the United Kingdom courts because her and her Husband last lived together in France. According to The Daily Telegraph, this decision will result in her losing any rights she might have had to her Husband's £1.2m pension.

The laws can also differ greatly by state. In Massachusetts, for instance, the court can consider potential inheritance as an opportunity "for future acquisition of capital assets and income" and award alimony or assign property to one spouse or the other based on that consideration. In many other states inheritance or potential inheritance cannot be considered by the divorce court.

In order to know where you can file for Divorce consult with a local attorney in the jurisdiction in which you live.

In Massachusetts M.G.L. ch 208 §4 requires that to file a divorce case in the Commonwealth the parties must have lived together in the Commonwealth as a married couple, and at least one of them lived in the Commonwealth at the time the cause of the divorce happened. As an exception to this requirement, M.G.L. ch 208 §5 allows you to file for divorce in the Commonwealth if you have been a resident for one year, or if the cause of the divorce occurred in Massachusetts and you are currently a resident. Since the standard for a no-fault divorce is a subjective standard relating only to whether or not you believe your marriage is irretrievably broken down, the Supreme Judicial Court on an interlocutory appeal has ruled that if you lived in Massachusetts when you came to the realization that your marriage is over, that is sufficient for establishing jurisdiction to file for divorce in Massachusetts. Caffyn v. Caffyn SJC-09141 (2004).

If you have questions about divorce in Massachusetts schedule a 1-hour Free Consultation.

If your spouse has lived in Massachusetts for one year or can establish that the breakdown of the marriage occurred in Massachusetts (as explained in a previous post) then they can obtain a divorce in Massachusetts. However, they will not be able to obtain personal jurisdiction over you and your property except in specific circumstances. In other words, Massachusetts can dissolve the marriage, but unless the Massachusetts courts can establish personal jurisdiction over you they cannot order you to transfer property that is outside Massachusetts or pay alimony.

Jurisdiction over the Dissolution of the Marriage

The United States Supreme Court in Williams v. North Carolina, 317 U. S. 287 (1942), decided that each State can determine the marital status of any spouse domiciled in that state, even if the other spouse is absent. Williams v. North Carolina, 317 U. S. 287, 298 (1942). In addition, the Court decided that under the Full Faith and Credit Clause that divorce decree must be honored in other states including the state where the other party lives. Id. at 299.

This means that if your spouse meets the requirements to obtain a divorce in Massachusetts then that Divorce Judgment ends your marriage legally in all states.

Jurisdiction over the Person

Having jurisdiction over the marital status of their residents, does not also extend to the property of out of state residents. In order for Massachusetts to have jurisdiction over the division of property outside the Commonwealth, the Massachusetts Court must have jurisdiction over the person of the Defendant. Personal Jurisdiction can be accomplished in a number of ways other than residency but is limited to very specific circumstances. M.G.L. ch. 223A Section 3, commonly referred to as the "long-arm statute" describes these circumstances as follows:

"(a) transacting any business in this commonwealth;

(b) contracting to supply services or things in this commonwealth;

(c) causing tortious injury by an act or omission in this commonwealth;

(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth;

(e) having an interest in, using or possessing real property in this commonwealth;

(f) contracting to insure any person, property or risk located within this commonwealth at the time of contracting;

(g) maintaining a domicile in this commonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim; or

(h) having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support or property settlement, notwithstanding the subsequent departure of one of the original parties from the commonwealth, if the action involves modification of such order or orders and the moving party resides in the commonwealth, or if the action involves enforcement of such order notwithstanding the domicile of the moving party."

Under section (g), the determination of what is an "act giving rise to such a claim" has been defined rather broadly in two Massachusetts cases, Miller v. Miller, 448 Mass 320 (2007) and Cherin v. Cherin, 72 Mass. App. Ct. 288 (2008), and can include "an exchange of words between husband and wife" that "leads one or both of them to conclude the marriage is over" or engaging in "a persistent course of conduct, by committing various acts in Massachusetts, which created for the wife the impression that he would soon be moving to Massachusetts to retire with her, even though he secretly had no intention of actually doing so."

If you are concerned about whether or not you have committed any "acts" that might give rise to such a claim you should discuss your case with an attorney with experience in these types of cases.

Jurisdiction over the Person for Custody and Child Support Orders

Although the Court may not have jurisdiction over you for the purpose of ordering alimony or property division, if you have children with your spouse and those children now live in Massachusetts, Massachusetts may have jurisdiction over custody/visitation orders and child support orders.

After children live in Massachusetts for six (6) months, under the current law, Massachusetts obtains jurisdiction over any custody or visitation issues regardless of whether any previous custody orders exist (although the orders would be considered before any changes are made).

If a previous support order exists, Massachusetts may have jurisdiction over that order depending on the circumstances. If no previous support order exists then a Massachusetts Court may obtain personal jurisdiction over a non-resident to make support orders under much more lenient standards than in the long-arm statute above. This jurisdiction can be obtained under the Uniform Interstate Family Support Act (UIFSA) which has broad standards such as personally serving you within the Commonwealth or if you ever resided with the child in the Commonwealth, etc.

If you are concerned about whether or not Massachusetts may have jurisdiction over your case under UIFSA, you should discuss your case with an attorney with experience in these types of cases.

To schedule a one-hour Free consultation with Kelsey & Trask, P.C. click here or call (508) 655-5980.

Where you reside can affect whether or not the Court has jurisdiction over your case as discussed in a previous post: Where you get Divorced matters! - British woman loses rights to £1.2 Million Pension.

Assuming that Massachusetts has jurisdiction, you still need to disclose your address pursuant to Massachusetts Domestic Relations Procedure Rule 11 which states in pertinent part: "A party who is not represented by an attorney shall sign his pleadings and state his address, telephone number, and e-mail address if any." The Court needs to know your address so that the Judge can verify that jurisdiction is proper and in the event the court needs to send you Notice of any hearings or other matters. Likewise the opposing party needs your address in order to send you proper notice of pleadings pursuant to Massachusetts Domestic Relations Procedure Rule 5(b) and a P.O. Box is not considered sufficient.

It is possible to withhold your address from a party to a divorce case if you have reason to believe that disclosing your address will place you in danger. If this is the case, you must file any paperwork with the Court in person with a Motion to Impound Address and explain to the Judge why you need your address to be kept hidden from the other party. This is usually used in cases of domestic violence.

What happens to your case when you move out of state, depends on the type of case, and what stage your case is currently in.

Divorce Cases:

If your Divorce case has not been filed yet and you or your spouse move to another state, that state may gain jurisdiction over your case after a certain period of residency. For persons moving into Massachusetts from other states, Massachusetts gains jurisdiction over your case after 1 year of residency (or in other unique circumstances) and you can then file for Divorce in Massachusetts. If you want to file in another state you will have to meet their residency requirement before you can file there. In addition, another state may not be able to take full control over your entire case if you have left children or property behind in Massachusetts. You should consult with an attorney in both states if you are in this situation to make sure you choose the appropriate forum for your case.

If your Divorce case has already been filed in Massachusetts and you or your spouse move to another state, then Massachusetts still maintains jurisdiction over you and your case. That means that Massachusetts can still make decisions about your property, children, and support issues, even if you don't live here anymore. Although, there are unique issues that relate to relocating children out of state, for the most part you will still need to participate in the Massachusetts divorce case. If you hire an attorney you may not have to attend all hearings, because they can attend for you and explain to the Court the unique circumstances of your case and your current residence out-of-state.

If you have settled a Massachusetts divorce case and both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce under the provisions of Section 1A. In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown and that you signed the Separation Agreement freely and voluntarily. It is possible for only one party to appear at the hearing if there are special circumstances that prevent the other party from attending. To be excused from the uncontesting hearing you must file a Motion and Affidavit stating the reasons why the party cannot attend. The Affidavit should also include the testimony necessary for the uncontested hearing. You should consult an attorney regarding the drafting of the necessary language.

Modification/Contempt cases:

If you have a Divorce or Paternity Judgment in Massachusetts but have since moved out of state, Massachusetts will still retainer jurisdiction over certain parts of your case. For example, if your children still live in Massachusetts then any Modification or Contempt actions relating to the custody, visitation or support of the children will still take place in a Massachusetts Court. If you have moved out of state with the children you should consult with an attorney to figure out which state now has jurisdiction over these issues.

At Kelsey & Trask, P.C. we have handled many cases for out-of-state clients and can conduct a Free 1-Hour Consultation via telephone or Skype if you are interested in learning more about our services and how we would help you with your case.