Your wife left you and your Virginia marital home six months ago and moved to Tennessee. Now you are served with papers saying she wants a divorce. In your gut you know she is right — you two were not destined for a strong future together. Your head, though, is fogged; does the divorce happen in Tennessee, or in Virginia?
Does It Matter Who Files First?
Most states have residency requirements for divorce. Where each party to the divorce lives is not as important as who files first for divorce. In our imaginary scenario above, you received service of divorce papers here, in your state of residence, Virginia. She filed in Tennessee before you could file in Virginia, and she’s lived there 6 months (we’ll talk about residency requirements later), so Tennessee has jurisdiction.
Being first to file can simplify your life, but if you are served with divorce papers from your out-of-state wife, you can still proceed with the divorce. You will need to hire an attorney licensed to practice law in that state. You may wish to hire a Virginia attorney to help you with all aspects of the divorce, from discovery to affidavits to depositions to the final divorce decree. You may also need to travel to the state your wife filed in, to put in a courtroom appearance (but that is not always true).
Being first to file puts you at the top of the jurisdiction list. The case will proceed under Virginia divorce laws, which could benefit you. Not every state has identical divorce statutes, so you may find yourself coming out ahead (financially, with children, with property) by being first to file and keeping the case in Virginia.
Divorce and Strategic Residency
Your wife may have chosen a state to move to precisely for that state’s divorce laws. In Virginia, property settlement is done equitably, along the lines of “take out what you put in,” but that is not true in all states.
As the experts at Business Insider show, nine states (9/50ths, or 18 percent) have community property laws. This compels courts in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin to divide all assets in a 50-50 split.
Say your wife worked at Save-A-Lot on East Little Creek Road in Norfolk. She was a cashier for nearly minimum wage, while you pursued a brilliant career as a podiatrist, the 17th-highest-paying job in Virginia (according to Zippia). Your retirement fund, vacation savings jar, and investment accounts are all primarily funded by you. In Virginia, you would get back a roughly equal proportion of the assets equivalent to what you put in. For every $100, perhaps $85 of it came from you, so during property settlement, you would most likely get about 85 percent of all assets.
This is not true in those nine states. If she lived in those states long enough to meet residency requirements she can file and claim 50 percent of everything. Everything.
So What Can You Do About Your Rogue Wife?
If you did not keep careful track of how long you two were separated, and you are suddenly served with papers from out of state, your first move must be to a qualified Virginia attorney.
Find out your best path forward. Let your attorney investigate the legality of her claim. Perhaps she jumped the gun in the other state and filed too early. Perhaps she filed the petition herself in that other state’s courts and selected the wrong jurisdiction or venue. Maybe she even tried a do-it-yourself approach using online legal papers (the worst possible choice for her, but possibly advantageous for you).
Avoid panicking until your experienced Virginia attorney can investigate. Even if she followed all the rules and filed everything correctly, your attorney could still find ways to make your life less difficult.
Because states may treat some aspects of divorce differently from one another (such as child support, child visitation, and so on), your attorney may be able to win jurisdiction in Virginia if it can be shown to be beneficial to (“in the best interest of”) your children.
If she keeps jurisdiction in her state, you may need to fly to her state to make courtroom appearances. You may also be able to have an attorney in her state handle much of the paperwork and court work for you.
Having two attorneys — one in Virginia and one in your wife’s home state — may seem expensive, but together the two attorneys can smooth out any issues and ensure you have all the right paperwork, make all the right appearances, and get the right solution (a divorce decree) in a timely fashion.
Call The Only Family Law Firm in Virginia Representing Men Exclusively
Who answers when you call The Firm For Men at 757-383-9184, or contact us online? Our own office staff right here in Virginia, who can quickly get you in to sit down with one of our family law attorneys, right here in Virginia. We are not “affiliated” with some national lawyer hotline. We are here, day in and day out, protecting Virginia men’s rights.