Need 2nd opinion

[sunshan06]

What is the name of your state? KY

I am married by the state of AZ. My husband and I are separated, however not legally. I am currently in the state of KY with our children. I consulted with an attorney here in the state of KY. He has informed me that I can file for legal separation here in KY, then in 6 months file for divorce (KY has 6 mo law of residency). Is this correct? That I can file for separation here because that is where the kids are physically located at the time. Wouldn't he be able to counter file (?) something that would require me to return to the state of AZ if he chose to? Which state has jurisdiction in this type of situation? How does custody/property type of issues worked out when there are 2 states involved?

 

[Ohiogal]

You cannot file anything in KY until you have established residency there. If it takes six months to file residency then you need to be there for six months.

 

[sunshan06]

He advised me divorce no, but separation yes. Because the children are currently in the state of KY. Now I'm confused. He is an attorney here. Residency only pertains to divorce, not separation. ??? Can my husband file for divorce in AZ once I file for separation here? I'm really confused.

 

[nextwife]

He advised me divorce no, but separation yes. Because the children are currently in the state of KY. Now I'm confused. He is an attorney here. Residency only pertains to divorce, not separation. ??? Can my husband file for divorce in AZ once I file for separation here? I'm really confused.

Neither you nor they are residents of KY. They have no legal jursidiction until that occurs. Certainly not over custody of a non-state resident child.

I can't just take my kid to IL and file three days later for divorce and custody because my child, a WI resident, is "in IL"! I must be a legal RESIDENT, and that takes time.

 

[sunshan06]

So what type of attorney did I contact today? Why in the world would he give me this advice? And I'm not talking a couple of days, and this is my home state.

 

[nextwife]

So what type of attorney did I contact today? Why in the world would he give me this advice? And I'm not talking a couple of days, and this is my home state.

So how long since you and the kids LEFT AZ and went to KY?

YOUR "home state" is now irrelevant if you've most recently been a legal resident of AZ.

 

[sunshan06]

By time it gets filed, about 3 months. And did I read that no one answering these posts are actually attorneys?

 

[Rushia]

By time it gets filed, about 3 months. And did I read that no one answering these posts are actually attorneys?

While most people aren't attorneys, one did answer you.

 

[Bali Hai]

By time it gets filed, about 3 months. And did I read that no one answering these posts are actually attorneys?

You want a real attorney?? Press the red button that says "Post your case to an attorney" and have your credit card number ready.

 

[Ohiogal]

So what type of attorney did I contact today? Why in the world would he give me this advice? And I'm not talking a couple of days, and this is my home state.

I dont know what type of attorney you contacted today. Nor do I know why he would give you this advice. Three months IS NOT enough time to establish residency. You need six. Or the courts there will NOT have jurisdiction.

 

[Ohiogal]

By time it gets filed, about 3 months. And did I read that no one answering these posts are actually attorneys?

You may have read that but it is not true. And it takes six months to establish residency. Hence it is SIX MONTHS before the courts there will have jurisdiction. Try it before hand and your husband can have the case kicked out and file in AZ and see about having the children forced back there.

 

[nextwife]

You may have read that but it is not true. And it takes six months to establish residency. Hence it is SIX MONTHS before the courts there will have jurisdiction. Try it before hand and your husband can have the case kicked out and file in AZ and see about having the children forced back there.

He can do that now. And has the legal right to do so. As of now, AZ would be the only state with legal jurisdiction to rule on the children's domicile.

The fact that you once lived in KY doesn't change that.

 

[sunshan06]

He can do that now. And has the legal right to do so. As of now, AZ would be the only state with legal jurisdiction to rule on the children's domicile.

The fact that you once lived in KY doesn't change that.

Does anyone know what he could file to force us back to AZ?

 

[Golfball]

Does anyone know what he could file to force us back to AZ?

That would depend on AZ procedure, but (I think) he can simply petition the (AZ) court to force you to return the children to AZ. AZ would have jurisdiction to do so under the UCCJEA, until the children have been resident in KY for at least six months.

And unless your husband, himself (and *NOT* through you or the children), has sufficient contacts with Kentucky, Kentucky will only be able to grant the divorce and divide any marital property within the state of Kentucky. They would be unable to grant you alimony, post-separation support, or property division outside of Kentucky.

Your husband may consent to granting (personal) jurisdiction to the Kentucky courts so they could do those things. I wouldn't bet on it.


Depending on AZ law, filing anything in KY may affect your rights in AZ. You'll need to talk with an AZ attorney.

I'm not sure on this, but the Kentucky courts also may not be able to order child support, although that would be subject to the provisions of UIFSA.

While I'm not an attorney, I did just spend four months squabbling about jurisdiction in my divorce case, and whether a court in a state that I have never been a resident of (other than on visits, which doesn't count unless I'm actually served in the state) can issue obligations upon me. (The answer was "No." I didn't have children involved, which could have changed things.)

Edit: Additionally, as long as your STBX remains a resident of AZ, the AZ courts would almost certainly have jurisdiction over you (depending on AZ's long-arm jurisdiction statute), so your STBX can file in AZ and you will have to dance to the AZ Court's tune.