Winter Garden, FL asked in Divorce for Georgia

Q: As the defendant, can I file a motion to dismiss a divorce under these circumstances?

My wife and I have lived in separate states for a couple of years and my kids have been living with *me* for the last year. She filled for divorce in her state of Georgia about 3 months ago. Since then, I've moved from state to state, currently residing in Florida, and have not yet filed a response to the divorce. Can I have this divorce dismissed under the grounds of her filling in the wrong state or that the home state of the kids is not Georgia? I would then like to file from Florida.

Related Topics:
2 Lawyer Answers

Regina Irene Edwards

  • Lawrenceville, GA
  • Licensed in Georgia

A: She did not file in the wrong state. She is allowed to file for divorce in Georgia if she has lived here for at least 6 months. Child custody is a separate issue. The home state is where the children have lived for the last 6 months, which seems difficult to determine based upon you saying you've moved from state to state. It is possible for the divorce to proceed, while custody is determined in another state. However, it is sometimes best to look at the big picture. If the case is already filed in Georgia, the case may be in a county and with a judge where you would be likely to get a good result. You should consult with an attorney about your options.

P. Justin Thrailkill

  • Fayetteville, GA
  • Licensed in Georgia

A: If you haven't lived in Georgia then jurisdiction and venue is inappropriate and she cannot file a divorce here. That said, objections to jurisdiction and venue are called "affirmative defenses" that need to be raised in your answer. If you were served three months ago, which is unclear, the court may not allow you to assert affirmative defenses at this time because you did not respond within 30 days.

All that said, if it was dismissed, and you decided to refile, you'd have to file in Georgia, because this is where she lives. As confusing as it sounds, jurisdiction and venue typically lie in the county where the Respondent lives. You file, she's in Georgia, you file in Georgia. She files, you're in Florida, she files in Florida.

Home state of the child would factor in if this was an issue of custody alone, but it is not.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.