Multi-State Divorce: Mission Complex, but Not Impossible

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August 1, 2012

With the Tom Cruise/Katie Holmes divorce dominating this summer’s headlines, the issue of multi-state divorce is back in the news. The story goes like this: Katie Holmes files in New York, where she is more likely to be awarded sole legal custody of the parties’ minor daughter, Suri. But Tom Cruise would benefit from California laws, which favor joint custody. Both states could have jurisdiction, but only one state will prevail. Which state wins out?

Alas, to the extreme disappointment of the media, Tom and Katie settled their divorce outside of court. But while we will have to look elsewhere this summer for our celebrity schadenfreude, we can still learn a lot from Tom and Katie’s interstate dispute. As it turns out, you do not need to be super-rich or super-famous to find yourself in a jurisdictional divorce conundrum of your own.

Multi-state issues are common in Northwest divorce cases. In fact, the specific Tom/Katie scenario repeatedly plays out in cases that are filed in Oregon or Washington. Like New York, Oregon favors sole custody over joint custody. But Oregon’s biggest neighboring states, California and Washington, tend to favor joint custody. In addition, California and Washington are both “community property” states with different rules for the division of property and debts.

Determining which state would be most advantageous for you is decidedly easier than determining which state will ultimately take jurisdiction. All states have basic rules generally requiring that one or both parties reside in the state in question. But because parties often physically separate before filing for divorce, it is not uncommon for the parties to reside in different states at the time the divorce is filed. This leads to situations in which multiple states have apparent jurisdiction. Unfortunately, in many cases, it is a race to the courthouse that ultimately determines where the case will be heard.

To complicate matters, when children are involved, a separate statute determines which state will take jurisdiction. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been passed into law in every state except for Massachusetts. The UCCJEA provides a helpful, but complicated framework for determining jurisdiction between states when child custody is at issue. But even in apparently clear cases, the statute allows for a change in venue if is determined that it would be more convenient to resolve the divorce in a different state.

When facing a potential multi-state divorce, the most important decisions are made at the very beginning. It is therefore crucial to consult with a competent attorney as soon as warning signs appear. If at all possible, you should choose an attorney who is licensed in both potential jurisdictions. Or, better yet, choose a law firm with offices in both states. This will allow you to obtain objective advice about the pros and cons of proceeding in each state.