Q: Living apart for over a year. Mom and 3yr old child have lived in TX forever, dad moved to alabama, file divorce where?
Mom and Child have lived in Texas for the child's entire life. Parents are amicable and in general agreement except Dad wants to file for divorce in Alabama where he's been living for a year. Mom thinks filing in home state is more correct and thinks filing in Alabama might cause issues later if things like custody need to be changed.
A: Like the old commercial for breath mints, you have "two, two, two questions in one!" The thing you are interested in is child custody, etc. From your question it appears that neither you nor your child have ever lived in Alabama for any significant length of time. Under these circumstances an Alabama Court lacks jurisdiction to award child custody or visitation, and CANNOT enter these orders. The Uniform Child Custody Jurisdiction Enforcement Act (the UCCJEA) has been adopted in Alabama. I assume it has been adopted in Texas as well. The UCCJEA provides that only the child's 'home state' has jurisdiction to decide custody initially. This usually means that the child must have lived in this state for at least six months before and Alabama Court can decide custody, visitation, etc. See Alabama Code Section 30-3B-201. The second question is whether Alabama has jurisdiction to divorce the two of you. An Alabama court has jurisdiction to dissolve a marriage if one of the parties to the marriage is an Alabama resident and lived in Alabama for at least the six months next preceding the filing of the divorce. See Alabama Code Section 30-2-5. Since your husband has lived here for six months, he can get a divorce here, whether you consent to it or not. But the divorce is ALL he can get. The Alabama Court can't decide child custody or visitation. The Alabama Court can't decide alimony or property division. The Alabama Court can't decide child support. Now sometimes your AGREEMENT to allow an Alabama Court to decide one of these issues can confer jurisdiction on an Alabama Court. You REALLY need to discuss this matter with a Texas attorney. He or she can give you a much better idea of what Texas law provides. While I have discussed the general provisions of the law, there are some exceptions. So you shouldn't rely on this note as a legal opinion. If you click on my name it will take you to my contact page. There you can find information on how to contact me, either by phone or by email. I don't charge for the first 30 minutes of an initial consultation.
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