How to Fight an Illegal Divorce & Custody

Child custody and divorce actions must proceed in the correct forum state.

The law in every state contains provisions relating to when an individual can file a divorce or child custody action. Such provisions notwithstanding, cases of one parent fleeing the home state and attacking the other in a new jurisdiction abound. Some people believe moves like this give them a strategic advantage over the other party. Statutes in every state, however, provide protection for the spouse or parent left behind in cases of illegally-filed child custody and divorce actions.

Things You'll Need

• Writing implements
• Copy of both yours and the other state's civil procedure rules and jurisdiction statute
• Copy of both yours and the other state's version of the Uniform Child Custody Jurisdiction and Enforcement Act

Instructions

1. Assemble your arguments for why the action filed against you is contrary to the law. Montana, for example, requires a party to have domiciled herself in that state for at least 90 days prior to filing a divorce action there. Ohio requires six months. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been enacted in every state, the state with jurisdiction--the right to decide--a child custody action is the state where the child has resided for the past six months.

2. File an action for child custody and divorce against the other party in the proper state. The procedure will depend upon the state where you reside, but it generally involves the filing of a petition and serving it upon the other party via the sheriff in the locale where she resides.

3. File a motion to dismiss your spouse's illegal divorce and child custody action for lack of jurisdiction. In your motion, set forth the reasons why the state where she attacked you is not the proper forum state. Make sure you file this motion in the state and county where she filed against you. At this point, you should also calendar your motion for hearing in accordance with the local rules. Make sure you serve the motion and calendar notice upon your spouse at her address of record or through her attorney.

4. Appear in court to argue your motion to dismiss for lack of jurisdiction. Bring copies of applicable law and explain to the judge why your spouse's action should be dismissed and allowed to proceed back home. Be prepared to prepare an order dismissing the action if you win and the judge asks you to do this.

5. Proceed in your action against your spouse in the proper forum state and county, which will most likely be the one where she left you. When her time to answer your initial filing has expired, calendar your case for hearing in accordance with your county's local rules. Always appear in court on time, properly dressed and armed with evidence and law that supports your position.

Tips & Warnings

• Jurisdictional issues can be difficult to tackle even for attorneys, even more so for individuals with no legal training.

References

• Montana Code Annotated Sec. 40-4-104
• Ohio Revised Code Sec. 3105.03
• "The Uniform Child Custody Jurisdiction and Enforcement Act"; Patricia M. Hoff; United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention; 2001.
• "An Overview of the Uniform Child Custody Jurisdiction and Enforcement Act"; Brandeslaw.com; Retrieved August 15, 2010.