Asked 10 months ago - Atlanta, GAFlag
Married for 42 years. Primary residence is in Georgia and own condo in Florida. Wife is now staying in Florida since November 2011. I want to file for divorce in Georgia, but how do I know where jurisdiction will be?
I'm going to assume from the length of the marriage that there are no minor children. If there are, unless the case is uncontested, the answer is going to be where they are.
Where you should file is a complex issue that you and your attorney should evaluate (and yes you need counsel). If the case is uncontested (with you and her agreeing on all the issues) filing in Georgia makes sense, especially if she clearly consents in the paperwork.
If there are contested issues, where to file needs to take into account both jurisidictional issues, practical ones, and potential advantages. In some situations, you might want or need to file where she is, and all the pros and cons could take a long time to post here. The question of whether a particular court can deal with assets in the other state, alimony, etc. has to be looked at in contested situations.
Feel free to call my office as to the Georgia options. 404-768-3509.
The question of Jurisdiction can be a very complicated one. As a general rule a person has the right to have any civil lawsuits brought against them in the state and county where they reside. Of course there are exceptions to this rule and the issue of "where they reside" can be rather subjective and up for argument. For example, if your wife is just on an extended vacation in Florida, then she still resides in Georgia for the purpose of jurisdiction. If she moved to Florida in 2011 and intended to make Florida her home then she would reside in Florida. The primary exception to the general rule would be Georgia's long arm statute which would allow for Georgia to exercise personal Jurisdiction over the resident of another state. However, to qualify for jurisdiction under the long arm statute you must meet very specific requirements. For that reason, I agree with the previous poster, you will probably need to seek the advice of an experienced Divorce Lawyer. For more information on the process of filing for divorce, please visit the links to our websites.
Where to file a divorce action is based on a question of jurisdiction and venue.
Jurisdiction is a two-part question. First, which place will have the right to issue an order binding a person. Second, which place will have a right to issue an order binding the "things" of the divorce. The answer to both is a strategic issue that is best discussed with an attorney.
Venue is a bit simpler. Once you decide on the appropriate state, the venue will be the county where the spouse resides.
If you anticipate having a "contest" about any issues in the divorce, I would strongly suggest that you speak with a few attorneys (in Georgia and Florida) to get some suggestions about the pros and cons of either state. Once you decide on a state, decide on an attorney in that state. If, however, you and your wife reach an agreement on all matters of the divorce, you can also agree on the jurisdiction; and would only need an attorney of that state to review your documents prior to filing them.
I hope this information helps answer your question(s).
~ Kem Eyo
First and foremost, speak to an experienced family law attorney, because as my colleagues said, jurisdiction and venue can be complicated matters.
Filing a legal action generally requires considerations of three types of jurisdiction, if you will – one of which is personal jurisdiction over the defendant. If the defendant is a non-resident of Georgia, personal jurisdiction with respect to proceedings for alimony, child support, or division of property can be accomplished through the Long Arm Statute, if a matrimonial domicile is maintained in this state at the time of the commencement of the action or if the defendant resided in Georgia preceding the commencement of the action and maintained "minimum contacts" with the State.
"Minimum contacts" requires a showing that the defendant purposefully availed herself of the privilege of doing some act or consummating some transaction in Georgia, such as purchasing your Georgia home and assuming the corresponding rights and obligations of doing so; and that the plaintiff (which would be you if you filed) has a legal cause of action against defendant that arises out of her activities within Georgia (i.e. the marriage). You would have to demonstrate that there is a substantial connection between your wife’s activities in Georgia and the subject matter of the suit (the divorce). And you would have to demonstrate that the Court’s assumption of jurisdiction is consonant with due process notions of fair play and substantial justice.
The above said, a Georgia court does not need personal jurisdiction over the defendant to simply grant the divorce. Our Code - OCGA § 19-5-2 - entitles you to access to Georgia courts for the purpose of dissolving your marriage. However, if you are seeking division of assets outside Georgia, custody of children, alimony, or other relief, then personal jurisdiction becomes an issue.
The action for divorce must also be filed in the proper venue. Article VI of the GA Constitution provides that divorce cases must be brought in the county in which the defendant resides, if the defendant is a resident of this state; if the defendant is not a resident of this state, then the divorce is filed in the county in which the plaintiff resides (you). Note that under the Georgia Code a defendant waives the defense of improper venue by failing to raise that defense by motion or through responsive pleadings or by voluntarily, in a sworn statement, waiving any objection to venue.
The divorce must also be filed in the proper Court. In Georgia, the Superior Courts have jurisdiction to hear the subject matter of divorce. However, the Georgia Code proscribes a court of this State from granting a divorce to any person who has not been a bona fide resident of this state for six months before the filing of the petition for divorce. A person's domicile may be changed by an actual change of residence with the avowed intention of remaining at the new residence. A "floating intention to return" to a past residence, according to the Georgia Supreme Court, is not sufficient to claim that the past residence is still the moving parties’ domicile.
It is really important that you seek the advice of counsel before proceeding with the divorce.
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