How and where do I go about starting the divorce process?
December 1, 2013 6:59 PM   Subscribe

I'm not yet sure I want to go that route, but I want to be informed and prepared just in case. Kids grew up expatriate, spouse recently moved them back without informing me or asking my permission, spouse has no job (supported by spouse's parent). I'm reading online that if there's a divorce and I act early, I'm more likely to get full (or at least fuller) custody. But where do I file?

The kids are pre-teen and have never lived in the US (only off continent) but were born in the US and are US citizens. Spouse is not, but holds a green card. For the past few years, spouse and I have been physically and emotionally (but not legally) separated, and I have been raising the kids solo. Spouse has moved the kids suddenly and secretly to the US. If I decide to file for a divorce, do I file in the state we were married in, or where spouse and kids are now, or can it be any state?
posted by anonymous to Law & Government (11 answers total)
You have to file in a state where you or your spouse can claim residency
posted by spunweb at 7:01 PM on December 1, 2013

Hang on, your spouse moved the kids secretly? Might that qualify as kidnapping in your country of jurisdiction? That's some serious stuff right there.
posted by These Birds of a Feather at 7:03 PM on December 1, 2013 [29 favorites]

this question is fraught with so many variables that it cannot be properly addressed by anybody on metafilter, including a retired california lawyer who did a lot of divorces, like me. first step would be consulting a divorce lawyer in the state where they're now. the residency requirement for a divorce might not apply if you just file for custody and do the divorce later.
posted by bruce at 7:22 PM on December 1, 2013 [16 favorites]

If your spouse secretly took the kids from their home and out of the country, then that may count as kidnapping. Do you live in a country that is a signatory to the Hague Convention on kidnappings by non-custodial parents? I'd recommend dealing with that before a divorce.
posted by easily confused at 7:24 PM on December 1, 2013 [8 favorites]

OP states that the spouse took the kids from their home outside of the US and moved them to the US.

I'm not a lawyer, but when my wife was consulting a lawyer about moving to Canada with her son, she was told it was very unlikely that a court would order any kind of custody outside of the US. Of course, at that point he hadn't lived outside the US.

You might consider filing where you are. That will make it harder to serve papers, but you'll have the advantage that spouse has to fight you in court where you are, rather than you having to fight spouse in court where he is.

You also might want to file really, really fast. "Possession is 9/10 of the law."
posted by musofire at 7:59 PM on December 1, 2013

In many jurisdictions custody is different to divorce. You need a lawyer (you didn't even say what jurisdiction the children have been living in the past few years) to evaluate your case; unless the lawyer advises you otherwise it is most likely to be favourable to you to file where the children have been living. In my jurisdiction "status quo" has a lot of weight; allowing the children to continue to live in the US for even a few weeks without filing kidnapping charges/custody arrangement tilts the balance towards the judge not wanting to distrupt the children's lives further - even if the original kidnapping is morally reprehensible.

Build up your support network now, prioritise finding out your legal rights and focus on custody over divorce right now. I'm sorry to hear about this, it must be very traumatic to have your children taken from you by someone that has not been in your life for years.
posted by saucysault at 8:19 PM on December 1, 2013 [2 favorites]

Wow, this is a terrible situation, I'm so sorry. This seems to me like the kind of situation where you do not want to make any mistakes, so don't listen to strangers on the internet, but find a lawyer. I know that's askme's answer to everything, but it really applies here. I'm not even sure if you should file for divorce right now, or deal with the kidnapping first, for example.
If you could tell in which country you live now perhaps people have suggestions on specific organizations you could go to.
posted by blub at 12:58 AM on December 2, 2013

Besides lawyering up immediately, you need to consolidate all your paperwork. Take time off work if you need to do this, but grab every email, every receipt, anything that is about your family. Especially emails - make sure you screencap your wife's facebook posts and whatever else you have access too.

Consider very seriously moving to the US as soon as possible, if you can get work, even lower paying. A local custody battle would be cheaper than international, if you don't have grounds for kidnapping, and you would have a much better shot at shared custody.
posted by viggorlijah at 1:30 AM on December 2, 2013

First of all, you really do need to look into filing a Hague Convention case. About seventy countries have signed the Convention, and they include most of the developed world. If your country is on that list, and your spouse has removed your children without your consent, you may have a cause of action there, and may even be able to initiate proceedings locally.

As to the rest of it, you cannot file for divorce wherever you like. The court needs to have jurisdiction. You can't just show up to any court you please and file divorce paperwork, even if both parties consent! At least one of the parties--doesn't necessarily have to be the one who files--usually needs to have lived in the forum for a certain period of time. That time can be up to six months. Some states are a bit more generous about that--Nevada in particular only requires six weeks--but no state will let you file without at least one of the parties meeting the domicile requirement.

And understand that custody cases and divorce cases are usually separate causes of action. They're usually filed at the same time and in the same place, but they're separate lawsuits, and the jurisdictional rules tend to be different. Jurisdiction is probably going to lie either where the kids actually are, or if they've recently moved, where they just came from. So even if you can get jurisdiction for the divorce somewhere other than where the kids are, you'll still most likely need to do the custody part elsewhere.

Look, you need a family law attorney immediately, and you probably need to hire one from the county where your spouse has moved and taken the kids. Even if you can find a lawyer elsewhere who can do something for you, odds are good that said lawyer won't be able to do everything for you, meaning you'd have to hire another one anyway.

If you PM me, I can point you in the right direction in terms of finding a lawyer.
posted by valkyryn at 7:23 AM on December 2, 2013

Are you a US citizen or green card holder and if so can you move there to pursue this and avoid an international battle?
posted by WeekendJen at 8:23 AM on December 2, 2013

You need a lawyer, but more importantly, you need to move FAST. Anecdata, but my fiance's ex took the kid to a different city (still within our country) just to 'think things over' and he didn't realize she wasn't coming back until she filed divorce papers. By then she had already established a 'status quo' of residence in the other city and there was no way to compel her to come back. They only just now got all the custody details worked out after over 2 years of wrangling, and the boy has had to resign himself to a long distance relationship with his son.

It may be different where you are. But check with a lawyer because we were told (after the fact) that if he had filed abduction charges right away, the court could have made her come back. But once a status quo was established, it was a done deal.
posted by JoannaC at 8:44 AM on December 2, 2013 [2 favorites]

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