Where can a husband or wife file a divorce case?
A husband or wife can file a divorce case in a court that has jurisdiction in a proper venue. Jurisdiction has several different meanings and is concerned with the power of the court to decide a matter and bind the parties to the decision. The Virginia city and county circuit courts have subject matter jurisdiction over divorce cases under Virginia Code Section 20-96. A person must have a certain connection to the Commonwealth of Virginia in order to file a divorce case here. At the time of filing, either the husband or wife must have been a bona fide resident and domiciliary of the Commonwealth of Virginia for at least six months preceding the filing, under Section 20-97 of the Code of Virginia. A member of the armed forces who is stationed in or residing in Virginia and has lived in Virginia for at least six months is presumed to be a domiciliary and resident during that time. This can include a service member being stationed on or residing in a ship that has a home port in Virginia, or being stationed on or residing on a base in Virginia, even though the federal government has exclusive jurisdiction over the base. A foreign service officer or serviceperson who is stationed overseas at the time the divorce case is filed and who was domiciled in Virginia for at least six months before being stationed overseas is deemed to be a bona fide resident and domiciliary of Virginia.
There are more complex issues involved when the husband and wife live in different states, giving rise to the concept of divisible divorce. The two primary constitutional issues are the due process of law we are all entitled to and the full faith and credit each state must give to the legitimate acts of sister states. The marriage itself can be thought of a thing, a res, that follows each of the parties wherever he or she may be domiciled. Either party may obtain a dissolution of the marriage in a state with jurisdiction over the marriage, known as in rem jurisdiction. On the other hand, the marriage also creates property rights and duties, including a right to support. A state may only bind a party to its orders concerning property rights if that state has jurisdiction over that particular person. This requires more than simply one spouse being a domiciliary of that state. Under the due process requirements of the U.S. Constitution, a person must have a certain minimum amount of contacts with the state in order for that state to affect that person’s property rights. When a state exercises jurisdiction over a nonresident, the state is said to be exercising “long-arm jurisdiction”, in effect pulling that out-of-state resident into that state with a long arm to affect that person’s property rights.
Virginia has a long arm jurisdiction statute in Code Section 8.01-328.1 that allows Virginia to exercise jurisdiction over a person in another state when certain connections exist. Particularly relevant to divorce cases, these connections include owning real estate in Virginia, executing a support agreement in Virginia, being ordered to pay spousal or child support by a court in Virginia that has personal jurisdiction, fathering or conceiving a child in Virginia, or having a marital domicile in Virginia prior to separation.
Venue is the proper place in Virginia where a Virginia case should be heard and is more concerned with the convenience of the parties. Section 8.01-261(19) of the Code of Virginia sets forth the preferred venue for a divorce case as “the county or city in which the parties last cohabited, or at the option of the plaintiff, in the county or city in which the defendant resides, if a resident of this Commonwealth…”. If the defendant is served by publication, then the preferred venue is the city or county where the plaintiff resides.
You should consult with your Virginia divorce lawyer concerning the proper jurisdiction and venue of your divorce case.