I Live in Colorado and My Wife Lives in Texas. Can I File for Divorce Here?
When filing a divorce (dissolution of marriage) case, one of the first steps a party, or divorce lawyer, will need to take is to do an assessment of where proper jurisdiction rests and if jurisdiction in Colorado is proper. Pursuant to Colorado Revised Statute, 14-10-106, in order for a party to file for divorce in Colorado, at least one of the spouses must have been domiciled in Colorado for at least ninety-one (91) days prior to the filing of the petition. If the spouse who lives in Colorado has lived here for the requisite time, he or she is free to file here, regardless of which state the other spouse resides in.
Setting aside the simple assessment of whether a dissolution of marriage case can be filed in Colorado, there are other jurisdictional issues to be dealt with before determining which state is really the proper state for adjudication of the case.
If someone domiciled in Colorado wants to be divorced, the court will ultimately grant the divorce, so long as the other party is properly served. However, service, alone, is not the determining factor. Though a decree of dissolution of marriage can be entered in virtually any scenario, financial and child related issues can only be decided as part of that divorce if Colorado has either personal jurisdiction over the other party or subject matter jurisdiction over the children.
The next part of the analysis tied into financial matters will be to determine whether financial jurisdiction could be asserted over the Texas party. If the married couple last resided together in Colorado and the wife then moved away to Texas, Colorado would have personal jurisdiction over her under the Colorado Long Arm Statute, C.R.S. 13-1-124(e) because the “matrimonial domicile” was maintained here. However, if the parties had last lived together in Texas, or another state besides Colorado, for a Colorado court to be able to exercise jurisdiction over an out of state person, the other person must either be served with the divorce petition and summons while they are in Colorado or that person must have “minimal contacts” with Colorado. In terms of minimal contacts, for personal jurisdiction to be asserted over the out of state litigant, that person must have property in Colorado, do business in Colorado, or have some sort of actual ties to Colorado. If there is personal jurisdiction over the out of state party, our courts can decide all financial issues, including division of marital property, spousal support, and child support. If not, they will need to be decided elsewhere.
If there are children of the marriage, the next part of the analysis will be to determine which state has jurisdiction for purposes of allocating child custody and parenting time. The first question to ask is whether the children have moved to Texas with the other parent, or have remained in Colorado with the husband. If the children have remained in Colorado with the husband, then Colorado will clearly have jurisdiction over the issue of child custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, C.R.S. 14-13-101. However, if the children are residing in Texas, Colorado will only have jurisdiction over them and the issue of child custody if a Colorado divorce case is filed within six (6) months of them leaving. If they have been gone from Colorado for more than 6 months prior to the filing of the divorce, though the Colorado court would clearly have long arm jurisdiction over the Texas parent for financial purposes, including child support, custody and parenting time would need to be decided in Texas.
When pondering divorce and assessing your options in cases in which one party lives out of state, it’s important for a jurisdictional analysis to be done. Sometimes, it might make more sense to file in another state, as opposed to dealing with some divorce issues in Colorado and some elsewhere. Consulting with a Denver divorce lawyer prior to filing your case can save both time and money you might spend later on should jurisdictional issues arise. Likewise, if you are served with divorce papers from another state, contacting an attorney right away may help preserve your rights and options related to jurisdiction and whether the other state can personally assert such over you.
