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How Multi-State Child Custody Works

One of the major lessons to take away in a family law scenario is that the state which has jurisdiction over your divorce or child custody case will have major implications. The difference between a divorce in Texas and a divorce in New York state not only means a difference in judges and the law but a difference in philosophy on the division of your marital property. Texas is a community property state and New York is adhering to a common law theory of property division which means that how your marital property is divided could be quite different. Add to that the convenience of having your family law case in your hometown or the inconvenience of having it across the country and you have good reason to learn as much as you can about this important subject before your case ever begins.

Relocation to another state can have significant impacts on your case given that once you establish residency in a certain state that means that the courts of that state will attain jurisdiction over your matter. Jurisdiction means that the court will have the ability to hear arguments and issue orders in your case. For any person who is contemplating a move, this is an issue that should hit close to home. Not only do you need to consider the positive factors of a move, but you need to consider whether the move will hurt your divorce or child custody case. Moving to or from Texas can place you in or out of a favorable spot. Sometimes it is a complete guessing game when it comes to which jurisdiction will be better for your case. Other times you will know full well which jurisdiction is more advantageous for you and in the best interests of your children.

Wanting to move during a divorce is a normal desire. Many people are looking for a support system during a complex and draining divorce process. Now that you do not have your spouse to lean on in tough times you may look to your parents, siblings, or extended family to fulfill that role for you. A move back home or wherever your family is located could be just what you need to hit the “reset” button and get back to where you are most comfortable. However, as we have already seen that move could greatly impact your family law case. At the very least this could mean that you must travel a substantial distance to have your desired home life and maintain your family law case. Whether you can take your children with you to the new location would be very much in doubt, as well.

In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss how a multi-state child custody case would work. Whether yours is a stand-alone child custody case or a child custody case that is part of a divorce, you will be walking with us through the journey of a child custody case that involves multiple states. Regardless of whether yours will be a temporary or permanent move, this is a blog post worth considering due to the information that is contained herein. We will talk to you about issues like jurisdiction and the financial impacts of the choice to move during a family law case. Along the way, if you have any questions, please do not hesitate to reach out to our office for a free-of-charge consultation with one of our licensed family law attorneys.

Filing for divorce: What are your options?

An important point to keep in mind throughout this discussion is that no two states have the same divorce or child custody laws. While many states may have similar laws that apply in similar situations there is no general theory of family law that is utilized across the board. Rather, depending upon the state where you move you may find that the family laws are much different than in the state of Texas. For some of you that may be a good thing depending upon the circumstances of your case. However, for others of you, this may work out to your disadvantage. The trouble is that you may not know the ultimate impact of that decision until after you move. Thus, speaking with an experienced family law attorney would tend to make a lot of sense.

Just because you live in a state does not mean that you can necessarily file for divorce, modify a child custody case, or file for any other type of family law case. The reason is that the state that you move to has to have jurisdiction over your case. You need to have lived in Texas for at least six months before filing your family law case and then for an additional 90 days on top of that in the county where you plan to file your case. You would need to do some research on what the jurisdictional requirements are for the state where you plan to move to move. The last thing you would want to do is to move and then wait to file for divorce or your child custody case.

Your co-parent could be living in Texas and then file a child custody or modification case here after you have moved. If you move without your child, then almost certainly you would have to deal with a family law case in Texas while living in another state. If you choose to move with your child, then there is a chance that you could get the case transferred to where you have moved- if the new location has acquired jurisdiction over your case. If not, then you would still have to deal with the Texas family law case. Either way, not a desirable situation for you to put yourself in. Moving either during or immediately before you know a family law case is going to be filed can be a dangerous decision both from the perspective of the outcome of the case and as far as the logistics of the case are concerned.

From a money perspective, the most immediate concern that you should think about in a time like this is what the impact of your move will be on child support. In a child custody case, it is child support considerations that are often the most financially tangible. By that, I mean that the parties to a child custody case can acutely feel how child support hits them in the wallet very quickly once the case is filed. If you are a parent who would be receiving child support, you do not want to move jurisdictions to a place where you would not be able to receive as much support as you would in Texas. Conversely, if you are a parent who will be paying child support then you do not want to move into a jurisdiction that would cause you to pay more in child support than you would have to pay in Texas. This is something that you can investigate fairly easily, however.

The Texas child support guidelines can be found in the Texas Family Code. A percentage of your income will be taken in child support each month beginning with 20% for one child before the court. This will give you some idea of how much income you can expect to need to pay over to the child support division of the Office of the Attorney General in Texas. That amount may be similar across different states, but you can do a test run to make sure. Look at the different child support statutes in the states where you plan on moving to get a better idea of what you may be in line to pay depending on where you choose to move.

Issues in addition to child support

If your main concern is your children and their well-being, then you would still need to consider issues related to your own life and being able to maintain a stable home environment for your children if you do decide to move. We tend to plan on things always working out. We think about our lives ending up just like we plan and do not consider all of the external forces at play when we decide to do things like move. Moving to a new place is a huge decision with a lot of moving pieces (no pun intended) that can frequently go wrong. You do not want to put yourself in a tight financial spot no matter the reason or justification for the move. You may have financial, emotional, and familial concerns that are pushing you toward a move. However, if you do not want to suffer because of an ill-advised move you should think through all the issues that are related to your case before packing your things.

On the plus side, moving could help you from a financial perspective when it comes to spousal maintenance. Spousal maintenance is what Texas considers to be alimony. Alimony is not given in Texas. It is quite rare to be in a position where you are paid alimony or maintenance following a divorce. Spousal maintenance can only be awarded by a family court judge. This means that you need to push your divorce to a trial to possibly get spousal support after the divorce. Even then, most family court judges in Texas prefer to award a disproportionate share of your community estate rather than award spousal maintenance. Keep this in mind as you think more about where you want to live and where you want to file for divorce.

Contractual alimony is when you and your spouse discuss the issue of post-divorce spousal support together and settle upon a specific amount of money to be paid by him to you. When you all negotiate on this subject you do so based more so on the contract laws of Texas than on anything in the Texas Family Code. Enforcing a contractual alimony award is different than enforcing a spousal maintenance award. However, if you want to be able to avoid a costly trial and like the idea of having a deal in place for post-divorce spousal support from your ex-spouse then contractual alimony may be the direction that you want to go in. Contractual alimony amounts can be whatever you and your spouse agree to. A lump sum payment immediately after the divorce, a series of smaller lump sum payments, or monthly payments can be agreed to depending upon what your needs are and what the financial situation looks like for your ex-spouse following the divorce.

What can you do if you and your spouse live in different states?

It may be a surprise to some of you reading this blog post, but it is not as uncommon as you may think for spouses to live in different states. Sometimes people grow apart and just decide to lead different lives despite their being married. No move will be made toward a divorce. No effort will be made to keep up with their spouse. One day the two people will decide to lead separate lives and that will be that. Married people can do something like this and remain living separately from one another for an extended period. Many times, people will not try to get divorced until something forces their hand. Keep in mind you may still be liable for the financial dealings of your spouse. He or she can take out loans in your name, using your information and you may not even be aware of it. For that reason and many more, you should consider divorcing your spouse rather than hanging onto a marriage that is failing or has already failed. This is despite the disruption to your own life that may come about because of getting divorced.

As we have already discussed, the issue of getting a divorce when you and your spouse live in different states can become quite costly. Let’s think about a situation where you live in Texas and your husband lives in Oregon. The question that the two of you would need to ask yourselves is which state would have jurisdiction over your divorce? If both you and your husband have lived in your respective states long enough to qualify as residents, then either Texas or Oregon would have jurisdiction over your case. Therefore, either of you could file for divorce in either state or jurisdiction that would be appropriate.

You need to think about the potential financial ramifications of filing for a divorce in either state. While both Texas and California state that adheres to Community property principles when dividing up the marital state, there can still be major differences in how Community property principles are applied across jurisdictions. How a Texas family court judge may choose to divide marital property could be significantly different than how a California family court judge does so based on the family laws of that state. Many times, it will become a race to the courthouse to see who files for divorce first. Ultimately, the divorce may need to proceed in whichever state your children are residing in. The reason for this is that a family court would be unwilling to issue orders regarding child custody and child support unless the children are physically located within that jurisdiction.

If your spouse chooses to move and immediately file for divorce in a state where jurisdiction can be gained quickly, you can ask that court to decline jurisdiction due to your residing in Texas with the children. Please bear in mind that having to make jurisdictional arguments across multiple courts in multiple states can become quite expensive. Therefore, you are better off attempting to resolve these issues directly with your spouse rather than having to resort to using attorneys to do so. Fortunately, you may be able to attend hearings virtually rather than needing to pay for travel expenses to make arguments in court in another state.

In closing, you need to be able to choose to work with an experienced family law attorney in whichever jurisdiction you choose to move forward with your child custody or divorce case in. As you can probably tell, there are many factors to consider when choosing to move in advance of or even during a family law case. You do not want to put yourself in a disadvantaged position when it comes to your case or to harm your children in any way. Considering your options and then making a decision that is best for yourself and your family can be done most efficiently by selecting the right attorney for your case.

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Other Articles you may be interested in:

  1. Options To Gain Child Custody Without Getting A Divorce.
  2. Legal Capacity in Texas child custody and divorce cases
  3. Determining the primary residence of your child in a Texas family law cases
  4. Grandparent Custody When a Parent is Addicted
  5. Child Custody FAQs
  6. Child Custody & Paternity Information from the Texas Attorney General
  7. Police officers and child custody issues
  8. Child Custody Disputes Because of Ex-Spouse’s New Partner
  9. The effect of substance abuse on child custody determinations
  10. Should you be asking for sole custody?
  11. Alcoholism & Child Custody: Protecting a Child’s Safety
  12. Military custody
  13. Can a father lose custody?

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