DIVORCE AND CHILDREN – Which state do I file in?
My Wife and I separated over a year ago she still lives in Louisiana I now live in Arizona. We both agree on the divorce but we have a 4-year-old son and I feel she is trying to push me out of the picture. It started out as I would have him summers and every other major holiday. But now she won’t split the cost of him coming out here. She does not stay in communication unless she is in need of money. I have given her money to pay bills electric, gas, day care etc. She constantly wants to go back on the agreement and says now that she’d rather have him full time. I just found out she now has a 15 year old daughter that is living with her and pregnant and I feel she is no longer stable financially to care for him. What can I do? Where can I file?
I am sorry to hear that you are having difficulty. Your questions bring up a lot of interesting issues.
You can file in either state. It did not say in your question how long you have lived in Arizona but if you have lived in Arizona for 90 days you can file in Arizona.
Ok great. I will go downtown tomorrow.
Before you race down to the courthouse we need to discuss your son. While the 90 days requirement allows you to file a dissolution (divorce) action in Arizona the action will not likely deal with your son. Based on your question it seems as though your son has and continues to live in Louisiana. If this is the case you will likely have to file in Louisiana as that is the child’s “home state.” There is difference between the Court being able to actually order that your marriage is over, including the division of property and the Court entering custodial (legal decision making and parenting time orders over your child/ren).
Wait, my son has not always lived in Louisiana. We both lived in Texas but when we separated she went to live with her parents and I moved in with family friends in Arizona. Does that change things?
It could. If the child has not been in Louisiana for substantially longer than you have lived in Arizona you may have the ability to file in Arizona. The Court will generally look to where the child has spent the most time. If you have an agreement that Mother would be the residential parent the Court can will likely view that as an agreement to use the Court in that state to handle your case.
Our agreement was via text message. Will the Court use it?
It should. Rule 69 of the Arizona Rules of Family Law procedure provides:
Rule 69. Binding Agreements
Agreements between the parties shall be binding if they are in writing or if the agreements are made or confirmed on the record before a judge, commissioner, judge pro tempore, court reporter, or other person authorized by local rule or Administrative Order to accept such agreements.
Text messaging, while likely not the most preferred method, would satisfy writing requirement (in Arizona) and would therefore be binding and enforceable in Arizona. If you file in Louisiana you will need to look at the rules of that state. As a general rule I advise my clients to either agree via email or write a separate agreement that both of you can sign. That way all of the terms are together and clear for each of you as well as the Court.
If the agreement is in writing then it is enforceable (in Arizona) so the terms that you agreed to would have to be followed or your ex could be in trouble with the Court. If there is just an understanding or a verbal agreement about splitting the costs of the visits you could have trouble if the other party claims that they never agreed to those terms. That is why it is very important to get agreements in writing. Don’t worry if you don’t have that particular agreement in writing you can still ask the Court to order the other person or you can ask that it be included in your child support calculation. If the costs are consistent the Court can include them in your child support calculation, which does not help you actually pay for the trip when it happens but can help out in the long run.
Our agreement does not talk about three day holidays or fall and spring break is that a problem?
Not necessarily. You can always add terms to your agreement or ask the Court to enter orders on the terms that you have not been able to agree to.
I still recommend you get a parenting plan and orders from whichever court takes jurisdiction over the child. It is important to have a “blue print” for your parenting time. Often times I hear that my clients get along great with his/her ex and they will just “work things out.” While this is great and I always encourage flexibility in parenting plans, without an order to enforce there is no accountability for your ex if he/she no longer agrees. If you have a parenting plan you both know what the rules are and there are consequences if you violate those rules. There is also nothing that prevents you from making arrangements that don’t match your plan. As a parent there are a lot of events that just happen that you cannot predict. No plan can anticipate every potential event. For example, lets say that you have the entire summer but your ex has an unexpected death in the family. Your plan would not provide for your ex to have time but you have the option of allowing your son to go to the funeral. What happens if you are scheduled to have fall break but your ex wants has a family reunion in Ohio that same week and he/she wants the child to go? You have the option of keeping your son and following the plan or you can allow the child to go in exchange for another week whether it is spring break or some time in the summer. Remember that it is important to get any agreements in writing so if there is a problem down the line you can show the authorities or a judge that your ex had agreed.
Okay, So I will probably have to deal with parenting time and legal decision making in Louisiana, can I still file for divorce in Arizona?
Yes, as long as you have been in the state for at least 90 days prior to filing you can file in Arizona and Arizona can have jurisdiction over the divorce itself and property. You should look at the expense of dealing with cases in two different states and the possibility of having to hire attorneys in two different states. It may be easier to file in Louisiana rather than Arizona so everything can be dealt with at the same time. If you have questions about how the states would treat the property you acquired during your marriage I recommend speaking with an experienced family law attorney.
Okay but what about my ex’s pregnant daughter?
Okay, while I can write another whole article about that question, I would simply tell you that if you believe that your ex is incapable of handling your child fulltime you have the option of asking the court to be the primary residential parent and have your son come live with you. The Court would have to determine what is best for your son. If you did not know the daughter was pregnant at the time that you agreed to let your son go live with your ex or she was not pregnant at the time that strengthens your case. Once again, I would recommend talking to a family law attorney in both states if you have more questions as this is just a brief answer on this as well as the other issues raised in your original question.
Lastly, remember that regardless of what your ex wants you have the right to have parenting time with your child.