In the majority of cases, it’s clear where a divorce or custody case should take place. For people who separate and live under the same roof, or for people who’ve always lived in Virginia, whose children go to schools in Virginia, or whatever, it’s probably pretty clear that the case is going to be handled in Virginia.
But it’s not always that clear. In fact, it can get pretty complicated. And we’ve seen probably more than our fair share of complicated cases because we have so many military families in our area, and they can live in about a million and one different places.
Most everyone WANTS the divorce or custody case to be where they live, or in a court that is convenient to them. But just because you want a case to be somewhere doesn’t mean that you can actually have your case heard there.
To some extent, too, it’s going to depend on the type of case. But let’s talk more about it.
Where can I file for a divorce?
Generally speaking, the place that a divorce should be filed is the last place where you and your husband lived as a married couple.
It’s more specific than just “Virginia”, too. Our circuit court system – which is where divorces are handled – has different courts in different cities and counties throughout the Commonwealth. If you last lived as husband and wife in Virginia Beach, your case will be in Virginia Beach. If you last lived as husband and wife in Virginia Beach, you’re not going to be able to file in Norfolk, Chesapeake, or York County, especially if your case is contested.
If you DO file in the wrong court, you’re likely to find that it’ll be transferred to the more appropriate court.
You may not live there anymore. It may be inconvenient. That probably doesn’t change anything. It’s probably not as bad as it sounds, though. Especially since the pandemic, most courts are a lot more forgiving about appearing via phone or video conference for court hearings. You may also find that you don’t have to go to court as much as you might expect; many divorce and custody cases settle without a trial.
As far as meeting with your attorney, much of that can take place via phone or video chat as well. You’ll likely find that you can get effective counsel and make court appearances without as much difficulty as you imagine now. Even if it is necessary to appear in person, it likely won’t be frequent.
Where can I file for custody?
Custody is a little bit different than divorce. In many cases, custody, visitation, and child support is handled along with the divorce in circuit court. If it’s a divorce case that also has custody and visitation issues, you’ll be in circuit court. See above.
If, though, it’s JUST custody, visitation and child support (and there’s no underlying divorce) or it’s a modification of a previous custody, visitation, and/or child support agreement or order, you’ll be in juvenile court.
For custody cases, the right place to file is where the kids are, as long as they’ve been living there more than 6 months. That’s why, in cases where parental kidnapping or relocation happens, it’s important to file emergency petitions right away. You never want your child’s other parent to be able to establish residency somewhere else for more than 6 months, effectively moving the custody case away from you.
Where you are is less important than where the kids are. After all, custody and visitation decisions are made based on the ‘best interests’ of the child standards, not the ‘best interests of the mom’ standard. (Or ‘best interests of the dad’, obviously. But I don’t represent or write for dads.) It’s not about you. It’s about the kids and what’s best for them – and, as you’re already aware, that’s a bit of a moving target because they’re constantly growing and changing.
As far as your distance from the courthouse, I’d say the same thing here as I said above. You might be surprised how little it actually matters! Attorneys will do consults over phone or video chat, so it’s not like you have to go there to hire or work with an attorney. Likewise, you may not even have to show up in person for a hearing; since the pandemic, we’ve gotten much more adept at dealing with parties who aren’t both physically able to be there in person. Talk to your attorney about your concerns, and come up with a strategy for dealing with it.
In many cases, I find that solutions are possible if clients are honest about the specific issues and their concerns. ‘I paid for an attorney and I can’t pay for airfare to the court appearance, too!’ is fair, so – RAISE THAT ISSUE. Raise it, and raise it early, so that something can still be done.
Maybe you have a more complicated issue. If so, you should definitely raise it with an attorney. If you’re not sure whether that attorney should be a Virginia attorney – call us! We will make sure your case is in Virginia before you pay for a consultation.
Repeat after me, “I just want to make sure my case would be in Virginia before I schedule an appointment. I was married in _________, and we last lived in _________. The kids live in ______________. Where would my case be?” We’ll help! I promise. We’ll tell you if you need to go somewhere else to file, and, depending on where it is, we may even be able to send you a recommendation. (But don’t count on it; I don’t know anybody at all in, say, Missouri.)
For more information, or to schedule an appointment, give our office a call at 757-425-5200.