You and your spouse were married in Hawaii. You resided as a married couple in Virginia for many years. Discord arose and now you have been separated for over a year. One month ago, your soon-to-be ex moved to sunny Southern California, while you remained in Virginia. You are ready to move on and want to begin divorce proceedings, where do you file?
Determining where to file your divorce is a question of jurisdiction. A court must have jurisdiction over your case before it can grant your divorce, and each state has specific requirements for jurisdiction. In order to file in Virginia, at least one of the parties must meet the residency requirements of Virginia Code Section 20-97. That section states in part that “no suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties is and has been an actual bona fide resident and domiciliary of this Commonwealth for at least six months preceding the commencement of the suit.”
The residency requirement is met if either party had an actual, “bona fide” permanent home in Virginia, even if that party was not physically present in the Commonwealth during every day of the time period.
The domicile requirement is a separate requirement. Being “domiciled” in a place means that you intend to live there permanently, or at least indefinitely. A person may have more than one residence, but can only have one domicile at any particular time.
Given these requirements, in the example above, Virginia would almost certainly be the appropriate place to file the divorce– not Hawaii, not California.
Servicemembers and their spouses should take note: Virginia law provides a special jurisdiction rule for military divorce cases. A member of the Armed Forces of the United States who has been stationed or has resided in Virginia for the requisite time period immediately preceding the filing of the divorce action is presumed to be domiciled in and to have been a bona fide resident of the Commonwealth.
To further complicate matters, a court may have jurisdiction to grant your divorce, but may not have jurisdiction to decide issues of child custody or property division.
If you have questions about jurisdiction, it is best to consult with an experienced attorney as soon as possible in the process. This step could prevent the waste of time and money that would be incurred by filing your divorce action in the wrong jurisdiction. The family lawyers at Livesay & Myers, P.C. have years of experience in handling jurisdictional issues in divorce cases across Northern Virginia. Contact us to schedule a consultation today.