Inconvenient Forum: Divorce Filed Far Away
Technically, any court anywhere in Virginia has jurisdiction over your divorce. So, even if you live in Virginia Beach, your husband could file for divorce in Fairfax, if he wanted to—just to be difficult. Usually it doesn’t happen just because someone wants to be difficult (because he’d have to drive to and from Fairfax for court dates, too, and his convenience matters to him); usually, it really just happens because the parties live in two different places, and the party who files first files wherever is most convenient for them, with no regard for the convenience of the other party.
Of course, convenience isn’t the only relevant factor. (Going to court for divorce is rarely all that convenient.) But, if there’s a more appropriate forum for your divorce to be heard, it is possible to petition the court, alleging “inconvenient forum”, in order to get your case moved somewhere that is more convenient and more appropriate for your litigation to take place.
Contested and Uncontested Divorces
What is appropriate in a given case depends on the type of case involved, too. Geography is important, but you may find that, depending on the type of case you’re facing, where the case is filed doesn’t matter all that much to you.
Most of the time, in a contested case, one of the parties needs to live in the city or county where the divorce was finalized. Though technically any court can divorce you, courts don’t love having their dockets backed up by litigants who don’t even live in their geographic area.
Why might someone file in a place where they don’t live? Usually, convenience, or the convenience of their divorce lawyer. Different courts follow different local rules, so some courts are easier to practice in than others. Because of this, certain courts (like Norfolk) have a lot of people who choose to file there, even if the parties to the case don’t live there.
That doesn’t mean Norfolk will just take any case off the street, though. There’s a filing fee of $91 currently in Norfolk, and the court doesn’t get more money depending on how complicated the case is. Norfolk has a reputation for not taking contested cases where the litigants don’t live in Norfolk—and many other courts feel the same way.
As far as uncontested divorces are concerned, though, lots of courts will take uncontested cases even when the parties don’t live in the city or county where the divorce was filed. Though this might raise red flags to you, it’s really not an uncommon practice—and it’s not a reason to get upset. If your husband is the moving party for your uncontested divorce (meaning that he’s the one who is filing), he probably will choose the court most convenient to him—and that’s not necessarily a bad thing. Once a signed separation agreement is in place, there’s nothing he can really do to change the terms of your agreement (though we do always, always, always review final decrees with a fine toothed comb)—so it doesn’t much matter whether he files in Virginia Beach or Roanoke. In an uncontested divorce, you won’t have to make an appearance in court, anyway; uncontested divorces are either handled by affidavit (meaning that he would provide sworn statements to the court instead of in person testimony) or through an uncontested divorce hearing, which would be attended by him and his corroborating witness only. Since you don’t even have to be there (like I said, your divorce lawyer would review the final decree, but it can move forward without you once that separation agreement is signed), there’s no real reason why he should choose a venue more convenient for you. So relax—it doesn’t matter where he filed. (Besides that, if he’s taking care of the filing, it’s him who is paying the divorce lawyer to move things forward, so it saves you $1500-2000!)
Bottom line: if your divorce is uncontested, it doesn’t much matter where you file. If your divorce is contested, though, anything can happen.
If your divorce is contested, and it’s filed in an inappropriate court, you may want to talk to a divorce lawyer about making a motion to have the case transferred to a more appropriate venue. Will it work? It depends entirely on the facts, but it’s possible. Some courts make the decision to transfer cases on their own—but if transferring is really important to you, I wouldn’t sit around hoping for that to happen!
Of course, if your husband filed in Virginia Beach (which is where you got married, where you own a home, and where you last lived as husband and wife), but you’ve moved away and live in Roanoke now, you’ll probably be less successful. Why should the court move the case to Roanoke for only your convenience? Chances are, you’d lose that motion. But if, on the other hand, he filed somewhere different from where you lived or where you own property, you’ll have a stronger argument for switching the case to somewhere more convenient.
Do I have to have an attorney to make a motion about inconvenient forum?
No. You don’t have to have an attorney to do anything with respect to a Virginia divorce or custody case – but you might want to! It’s not always super easy to follow each court’s rules (and they do vary, sometimes dramatically, from court to court – even within the same state) and, if you don’t, you could find that you lose your motion and end up stuck in a court that makes your life a whole lot harder.
Of course… You might choose to hire an attorney to handle your motion, even if you want to hire a different attorney to handle your divorce. It will likely be cheaper this way, since you won’t have to pay the attorney to travel. If you want to just have one divorce lawyer who handles it all, that’s fine too—but keep in mind most charge for their travel time.
If you’re worried about venue, come talk to us! Even if you’re just wanting to get out of a Hampton Roads court, we can help. For more information or to schedule an appointment, give our office a call at (757) 425-5200.