What State Can I File My Divorce In?

Before Nevada courts grant a divorce, they must first have jurisdiction to grant a divorce. Jurisdiction is the authority to consider and decide legal issues. In order for Nevada courts to have jurisdiction over a divorce, one of the parties must have resided in the state for at least 6 weeks prior to filing the divorce. In Nevada, residency is based on “physical presence,” which means the place where a person is physically located.   Nevada does not look at owning a home or being licensed to vote in Nevada as residency. You must be physically present in Nevada.

What if I am physically present in the state but my spouse is not?
You can file the divorce as long as one of the parties has been physically present in Nevada for at least 6 weeks prior to the filing.But, be careful.  A Nevada court cannot order your out of state spouse to pay alimony or to share their pension. In order for a Nevada Court to have the authority to order another spouse to do something they must have  personal jurisdiction over that person. This means the court must have authority over the person. To have authority the person must live in the state or have enough minimum contacts with the state that jurisdiction makes sense.

What about a military divorce?
When a military member is deployed there domicile is determined by their home state.    In order to determine jurisdiction over a military member the court looks at the members Leave and Earnings Statement (LES).  The LES contains a spouses’ designation of state tax withholding.   Additionally, the parties’ DD Form 2058 , also known as the “State of Legal Residence Certificate,” is also beneficial in determining which court will have jurisdiction over the divorce.

Custody Jurisdiction
The court needs jurisdiction over the children to make orders about custody or child support. The Uniform Child Custody Jurisdiction and Enforcement Act, referred to as UCCJEA, is a uniform law adopted by all states and utilized within family courts.  The purpose of the UCCJEA is to explain which state has jurisdiction to determine custody issues. The UCCJEA does not determine details regarding custody arraignments but rather it determines which State court has jurisdiction to make those decisions. A court having jurisdiction over child custody matters is called the child’s “home state.” The child’s home state is the state in which the child has lived for at least 6 months prior to the filing of a custody action.

Once a home state has exercised jurisdiction and entered a custody order, that state is said to have “exclusive, continuing jurisdiction,” meaning that only that state has the authority to modify its original custody order. In this situation, exclusive continuing jurisdiction is only broken when both parents and the child have left the state. In other words, a state who enters an original custody order will have exclusive and continuing jurisdiction until that child lives in another state for at least 6 months and both parents have left the original state.

What if my child has not lived in Nevada for 6 months?
Under the UCCJEA, and in very limited circumstances, courts can exercise temporary emergency jurisdiction when emergency situations arise. For example, if you left California with the child because your spouse was abusive. Under this emergency situation, a Nevada court may have the authority to make temporary custody orders to protect the safety of the parent and child.

Divorce and custody jurisdiction can be complex and confusing. If you have questions about where you can file your divorce contact RIGHT Lawyers at (702) 914-0400 to schedule a consult.