Every once in awhile, both parties will file for divorce at the same time. Does it matter? Which county? What if the parents live in different states? How is jurisdiction determined? What about if their are minor children involved?
Generally, if both parents live here in Wisconsin and file for divorce, it is not really going to matter all that much who filed first. There really isn’t an upper hand or legal advantage to filing first as the petitioner, as opposed to being the respondent in the divorce case. If both parties live in different counties, that might be a consideration just on a convenience issue, such as if mom lives in Waukesha County, but dad lives in Wood County. For jurisdiction to attach, you must reside in this state for 6 consecutive months and in the county you are filing in for 30 days preceding the filing date.
Things get much more complicated when the parties have separated and live in different states. Here is an example, that will probably read like a law school exam. Parties are married in California. After the marriage they move to Wisconsin. From Wisconsin, the wife stays here, but the husband moves to Washington. Which state has jurisdiction? While every state may have its’ own rules for jurisdiction for filing, if both parties are out of California where they were married and neither is living there anymore, clearly California doesn’t have jurisdiction at time of filing to proceed with the divorce? What about Wisconsin? Under the facts presented, Wisconsin would have jurisdiction over the divorce, as long as the wife has been living here for 6 consecutive months prior to filing, even if her husband left the state. There would also be personal jurisdiction over the husband, even though he now lives in Washington state, since he lived here with his wife for some period of time during the marriage, so he does have some connections with the state. What about Washington, where the husband now lives? If the husband can meet the residency requirements for filing in that state, he might be able to file, but there wouldn’t be personal jurisdiction over the wife in the state of Washington, since she never lived there, they weren’t married there, she doesn’t own property there, doesn’t work there and has never visited the state. The concept is that it would be unfair to make her appear and defend herself in a lawsuit in a foreign state that she has no connections to legally. The husband might be able to get a divorce in Washington, but the court could not make any orders or decisions on the property issues involved in the case.
Add to the mix now of having children involved. Let’s assume the same fact pattern as above. The parties were married in California. They moved together as a family to Wisconsin where they lived and had children and have been in here now for two years. The husband moves to Washington and the children stay behind with their mother. He has been in Washington for 6 months at the time the wife files for divorce in Wisconsin and at the same time the husband files for divorce and seeks custody of the children in Washington state. Which state has jurisdiction over the children?
Under the Uniform Child Custody Act (UCCJEA), the “home state” for jurisdictional purposes is the state where the children have been residing for the last 6 months. Under the UCCJEA, California would be excluded from custody jurisdiction since the children never resided in that state. Wisconsin would be the “home state” since the children have resided here with one or both of the parents over the last six months, prior to the filing date. Washington would be excluded under the UCCJEA, since there can be only one “home state” and the children have never resided with the husband in the state of Washington. Is your head spinning? Well, it should. All the more reason if you have a messy divorce, you should hire an experienced family lawyer to help you.
If you have questions about filing for divorce or a jurisdictional issue that may be affecting your case, call one of the experienced family lawyers at Karp & Iancu, S.C. today.
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