Five years ago, you married your spouse in Massachusetts. During this time, you had two children, shared a marital home, had a business together, and shared countless other assets. You have decided on filing for divorce, but things have gotten a bit complicated. Your (soon-to-be former) spouse wants to move out of state and have custody of your children. You probably have so many questions, like can you file for divorce here? Does this story sound like something you are going through? The jurisdictional requirements for filing for divorce in the Commonwealth are the first steps in the process. This article will explain if your divorce can be filed here, what to do if your spouse is leaving the Commonwealth during the proceedings, and how this complication can affect child support and custody.
Can you file a divorce in MA?
First, you must determine if your divorce can be filed in Massachusetts. You may file the divorce action in Massachusetts based on the domicile of both parties. The definition of domicile is a person’s permanent residence where they live full-time or the intent of a person to remain permanently or for a period in a new place. To determine domicile in a divorce proceeding, Massachusetts judges consider how long a person lived in Massachusetts, and any further signs of permanent residency. These signs can include a mortgage on a home, a Massachusetts driver’s license, or whether the person raised any children in the Commonwealth.
In short, if you are filing for divorce in Massachusetts, you must have been living in Massachusetts at least one year before the filing or if you are living in Massachusetts at the time of the divorce and the divorce occurred in the Commonwealth, jurisdiction is still valid. See G.L.c. 208, §5. If the cause of action for your divorce occurred here, you have subject matter jurisdiction here.
If your former spouse continues to say that because they moved they cannot be asked to participate in a divorce in Massachusetts, you have two options: Rule 4(e) of the Massachusetts Rules of Domestic Relations Procedure and the Massachusetts Long Arm Statute.
Rule 4(e) explains the jurisdictional requirement of service of process during a divorce case. It will give your former spouse proper legal notice that there is a divorce action against him or her. The rule states:
When any statute or law of the Commonwealth authorizes service of process outside the Commonwealth, the service shall be made by delivering a copy of the summons and of the complaint: (1) in any appropriate manner prescribed in subdivision (d) of this Rule or (2) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction; or (3) by any form of mail addressed to the person to be served and requiring a signed receipt or (4) as directed by the appropriate foreign authority in response to a letter rogatory; or (5) as directed by order of the court. (Mass. R. Dom. Rel. P. 4(e).)
Massachusetts Long Arm Statute
Additionally, the Massachusetts Long Arm Statute describes when a court can exercise jurisdiction over a person who engaged with business or other affairs in the state. This statute allows the state to bind a defendant in a divorce hearing to the laws of the Commonwealth. Specifically, the Massachusetts Long Arm Statute states that if anyone maintains a domicile within the Commonwealth of Massachusetts during a “personal or marital relationship of which arises a claim for divorce…”, the court can hear the case in the Commonwealth. See Mass. Gen. Laws ch. 223A, s. 3(g).
Having contact with more than one state can affect child custody and support decisions as well. Regarding child support, please be aware that the Massachusetts Long Arm Statute can further apply to your claim for child support against your former spouse if they move. If you continue to live in the state with your children, the Court may exercise jurisdiction over your former spouse. You may petition the Massachusetts Probate and Family Court as well.
Nationally v. Massachusetts
Regarding child custody, you may be wondering if more than one state can enforce a custody decision? Will Massachusetts law take precedent? All but one state have adopted he Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) of 1997 – ALL EXCEPT FOR MASSACHUSETTS! This act aims to establish jurisdiction over child custody in one state and to protect these orders from being modified in a different state.
Unlike the rest of the country, Massachusetts relies on the Massachusetts Child Custody Jurisdiction Act (MCCJA), the Massachusetts Uniform Interstate Family Support Act (UIFSA), and the Federal Parental Kidnapping Prevention Act (PKPA). These laws state that if a child resides in Massachusetts when a divorce is filed, Massachusetts can exercise jurisdiction over the children in that specific case. Like the UCCJEA, the Commonwealth may exercise temporary jurisdiction over a child where there is kidnapping or child endangerment. The MCCJA and UCCJEA share many similarities. However, things may become difficult if your former spouse wants to take the children to a new state.
Confusion and Difficulties
While the UCCJEA allows the court where the divorce was initiated to retain jurisdiction over a child’s case, even if they have left, MCCJA does not. The Commonwealth’s act prohibits Massachusetts courts from retaining jurisdiction over children once they leave the state. These situations create a lot of confusion which can lead to two custody cases ongoing simultaneously. This financial and stressful burden that stems from Massachusetts’ difference is important to note when filing for divorce.
Need more information surrounding the jurisdictional requirements in a divorce proceeding, or family law generally? Are you looking for an experienced Newburyport or Andover divorce lawyer? Consider scheduling a free consultation with our office. Call (866) 995-6663 during regular business hours or schedule a phone consultation.