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Will the divorce be held in federal or state court?

November 5, 2016 Blog

Q: Will my divorce case be held in federal court or in a New York state court?

A: All divorce cases, regardless of the residence status of the plaintiff or the defendant, are heard in a state court. If the divorce was filed in New York, then it will be heard by be heard by the Supreme Court of the county in which the divorce petition was filed.

If one spouse is a resident of a state other than New York, the case will still proceed through the New York courts but possibly at a slower rate because the out-of-state spouse must be served with a summons to appear and then must be allowed time to respond to all motions that are filed in New York.

Q: If my divorce was granted in New York, but my ex-spouse lives in another state, can I go to a federal court to force my ex to live up to the terms of the divorce decree?

A: No. There is a long tradition, going back for over 150 years, that federal courts cannot involve themselves in matters of domestic relations. The legal philosophy behind this decision is complex, but can best be explained on the basis of the United States Constitution.

Article IV, section 1 of the Constitution states that each state must grant “full faith and credit” to the laws and court decisions of any other state. In domestic relations law, this means that a divorce granted in Arizona is recognized as a divorce in New York or in any other state. The power to enforce the terms of that divorce does not, however, extend to the courts of another state. In the example presented here, only an Arizona court would have the power to enforce the terms of the divorce. The Arizona court could request that the authorities in New York assist in enforcing its actions, but the New York authorities are not obligated to act in any way.

The full faith and credit clause extends to marriages and divorces in other countries as well. A marriage that took place in France is a marriage in the United States, and a divorce in Germany is a divorce in the United States as well.

Q: Does this mean that federal law and the federal courts have no authority in regard to divorces and the terms of state court divorces?

A: No. Federal law may still apply to payment of child support as well as to certain financial consequences of a divorce.

Title 18, section 228 of the United States Code makes it a federal crime to willfully refuse to pay child support that has been ordered by a state court, or to cross a state line for the purpose of avoiding a state court order to pay child support. Federal law and other regulations may also determine how some financial assets such as military pensions, retirement accounts, social security benefits, and financial assets that are held in trusts may be divided.

Questions related to federal rules and regulations involving financial assets in divorce cases should be directed to an attorney practicing domestic relations and/or divorce law or to an accountant with experience in federal jurisdiction over domestic joint assets.

Q: This is all very confusing. If I’m involved in a divorce case with my spouse who is out of state what should I do?

A: Divorce cases of the nature discussed above are indeed complex and confusing. Anyone involved in a divorce proceeding in which their spouse is residing outside New York, of if they themselves are living out of state should retain the services of a domestic relations/divorce attorney who understands the issues involved in divorce cases of the type discussed here.



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