Where do I file my divorce (legal matter) if my spouse lives in another county?

Kids looking at a map in a car's trunck
Feb 20, 2018 | Sara Khaki

Jurisdiction Questions: Where do I file my divorce (or legal matter) if my spouse lives in another state?

This is one of the most common questions we get day in and day out. If you need to file for a divorce, child custody matter, Legitimation or other family law matter, and the opposing party lives in another state  – how do you know where to file?

Filing for Divorce

You do not have to file in the same state where you were married. In fact, where you were married has absolutely no bearing whatsoever when it comes to filing for divorce. But nonetheless, it is a complicated question involving several factors regarding the parties involved.

Typically, legal matters are filed wherever the Defendant resides. However, each state has its own requirements to establish residency in that state. For Georgia, established residency requires the person to have lived in Georgia for at least 6 consecutive months. Often when our clients have a spouse that lives in another state, we may tell them to let the out-of-state spouse file first, so our clients won’t have to travel to complete the divorce process. At other times, we may tell our clients to go ahead and file first if the out-of-state spouse will consent to jurisdiction in Georgia. It is a very case specific determination that is made by our attorneys after an indepth review of your unique situation.

Filing for a Divorce When There are Children

When a divorcing couple has children, the best interests of the children take precedence. The best interests of the children is a very complex question and involves an indepth analysis into a specific situation.  Jurisdiction gets especially complicated when there are children involved in a divorce case with an out of state spouse, in fact there is an entire set of statues about it called the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act).

Filing for Legitimation

Legitimation is required whenever a child is born outside of marriage to recognize the Father as not just the biological Father, but also the legal Father of the child(ren). Fathers are not legally recognized by the judicial system until they file a Legitimation case and appear before a judge. These cases are typically filed in the jurisdiction of the child, i.e., wherever the child has lived for the past 6 months if filing in Georgia, or wherever the Defendant lives – Mom is almost always the Defendant in a Legitimation case. However, there are always exceptions and every case is unique. An attorney is needed to properly evaluate a case to determine the appropriate jurisdiction for filing a Legitimation case.

Deciding the proper jurisdiction for your family legal matter can be very complicated, as there are many stipulations to consider and some trump others. It’s always best to employ the help of an attorney to make sure you file in the correct jurisdiction. Further, filing in the incorrect jurisdiction can lead to your case being thrown out, requiring you to start the process all over from the beginning. You want an experienced attorney at your side from the very start to determine the appropriate jurisdiction for your case.


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